40 years ago, a ruling that still rings today

Tuesday, June 7, 2011

On June 7, 1971, the U.S. Supreme Court issued a decision that has reverberated in free-speech law for 40 years.

The Court’s 5-4 ruling in Cohen v. California cleared a wider field for freedom of speech in several ways. It limited the fighting-words doctrine, rejected application of the obscenity doctrine to profanity, emphasized that offensive speech deserves protection and warned against the prospect that the government could ban words to discriminate against unpopular views.

Officials charged Paul Robert Cohen in April 1968 with violating a California law that prohibited disturbing the peace by “offensive conduct.” Cohen’s “offensive conduct” was wearing a jacket in a Los Angeles County Courthouse bearing the words “Fuck the Draft.” Officials noted that women and children were in a corridor Cohen came through wearing his jacket.

To Cohen’s credit, when he entered a courtroom, he removed the jacket and folded it over his arm. A police officer noticed Cohen and sent a notice to a judge about citing Cohen for contempt of court. The judge refused to do so, but the officer arrested Cohen on the offensive-conduct charge.

A Los Angeles municipal court convicted Cohen and his conviction was upheld by the California Court of Appeals. After the California Supreme Court refused to hear the case, Cohen’s last hope was the U.S. Supreme Court.

Cohen argued that he had a First Amendment right to engage in non-threatening, non-disruptive political speech – speech against the Vietnam War. The government countered that Cohen’s speech was disruptive conduct akin to fighting words – words that the Supreme Court had described years earlier in Chaplinsky v. New Hampshire (1942) as those that inflict injury or incite an immediate breach of the peace.

In his majority opinion, Justice John Marshall Harlan rejected the analogy to fighting words, noting that Cohen’s jacket was not a face-to-face personal insult – the type of expression that generally triggers the fighting-words doctrine. “No individual actually or likely to be present could reasonably have regarded the words on appellant’s jacket as a direct personal insult,” Harlan wrote.

He also rejected the idea that the words “Fuck the Draft” were obscene, writing: “Whatever else may be necessary to give rise to the States’ broader power to prohibit obscene expression, such expression must be, in some significant way, erotic.”

Harlan later waxed eloquent on the meaning of free speech and against the power of the government to prohibit certain words and ideas in a free society.

“The constitutional right of free expression is powerful medicine in a society as diverse and populous as ours,” he wrote. “That the air may at times seemed filled with verbal cacophony is, in this sense, not a sign of weakness but of strength.”

Harlan then wrote the powerful phrase that not only has shown tremendous staying power in First Amendment jurisprudence but also has entered our cultural lexicon — “one man’s vulgarity is another’s lyric.”

Finally, the justice warned against the danger that government could ban words as a way to discriminate against certain viewpoints: “Indeed, governments might soon seize upon the censorship of particular words as a convenient guise for banning the expression of unpopular views.”

Cohen v. California is an important case to be celebrated whenever we reflect on the crucial importance of the First Amendment in our free society.

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