Blog: ‘One man’s vulgarity is another’s lyric’

Monday, May 3, 2010

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Some passages in legal opinions take on a life of their own, entering our cultural lexicon for their particular power, precision or passion.

In First Amendment law there are many such passages. Consider Supreme Court Justice Oliver Wendell Holmes’ admonition in Schenck v. United States (1919) that there is no free-speech protection for “falsely shouting fire in a theater.” Or Justice Robert Jackson’s exposition in West Virginia Board of Education v. Barnette (1943) on the “fixed star in our constitutional constellation … [that] no official, high or petty, shall prescribe what is orthodox.” Then there is Justice Potter Stewart’s infamous statement on obscenity, “I know when I see it,” which he feared would be his epitaph.

Perhaps the most potent of all First Amendment pronouncements was written by Justice John Marshall Harlan II, who was not a liberal or a supporter of offensive behavior but rather an advocate of judicial restraint. Harlan, who served on the Court from 1955 to 1971, was seen as a conservative at a time when the Court was headed by the liberal Chief Justice Earl Warren. But Harlan, in his last year on the bench, issued a remarkable First Amendment opinion involving vulgar expression.

Paul Robert Cohen wore a jacket bearing the words “Fuck the Draft” in a Los Angeles courtroom. Officials asked him to remove the jacket, which he did. However, they also charged him with breach of the peace for wearing the clothing. A Los Angeles municipal judge found Cohen guilty and sentenced him to 30 days in jail. On appeal, Cohen lost before the California Court of Appeals. His attorneys appealed to the California Supreme Court, which refused to hear the case.

Cohen's last chance was the U.S. Supreme Court. Surprisingly, led by Harlan, the Court ruled in Cohen's favor.

“This case may seem at first blush too inconsequential to find its way into our books, but the issue it presents is of no small constitutional significance,” Harlan wrote to begin his opinion in Cohen v. California.

The conservative justice noted that Cohen's conviction rested upon the content of the words on his jacket. The state argued that the words amounted to fighting words, a category of speech not protected by the First Amendment. Fighting words are those that by their very nature incite an immediate breach of the peace.

Harlan rejected the fighting-words argument, saying that the Cohen's words were not directed at a specific individual. He wrote:

“First, the principle contended for by the State seems inherently boundless. How is one to distinguish this from any other offensive word? Surely the State has no right to cleanse public debate to the point where it is grammatically palatable to the most squeamish among us. Yet no readily ascertainable general principle exists for stopping short of that result were we to affirm the judgment below. For, while the particular four-letter word being litigated here is perhaps more distasteful than most others of its genre, it is nevertheless often true that one man's vulgarity is another's lyric (italics added). Indeed, we think it is largely because governmental officials cannot make principled distinctions in this area that the Constitution leaves matters of taste and style so largely to the individual.”

This important passage — particularly the words “one man’s vulgarity is another’s lyric” — indicates that Harlan recognized the malleable nature of offensiveness. What may be offensive to one person may be beautiful to another. What one person may consider highly objectionable, another may consider a high form of art. Tastefulness or lack thereof is in the eye of the beholder.

The Cohen case has been cited thousands of times in judicial opinions, in many instances specifically for Harlan’s wondrous little phrase.

“One man’s vulgarity is another’s lyric” captures the essence of freedom and the First Amendment.

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