Cohen v. California

Holding:

5-4 decision for Cohen

Facts:

A 19-year-old department store worker expressed his opposition to the Vietnam War by wearing a jacket emblazoned with "**** THE DRAFT. STOP THE WAR" The young man, Paul Cohen, was charged under a California statute that prohibits "maliciously and willfully disturb[ing] the peace and quiet of any neighborhood or person [by] offensive conduct." Cohen was found guilty and sentenced to 30 days in jail.

Alternative Solutions:

In a dissenting opinion, Justice Harry Blackmun, joined by Burger and Black, suggested that Cohen's wearing of the jacket in the courthouse was not speech but conduct (an "absurd and immature antic") and therefore not protected by the First Amendment.

Major Doctrines:

The First Amendment, as applied through the Fourteenth, prohibits states from making the public display of a single four-letter expletive a criminal offense, without a more specific and compelling reason than a general tendency to disturb the peace.

Reasoning of the Majority:

Yes. In an opinion by Justice John Marshall Harlan, the Court reasoned that the expletive, while provocative, was not directed toward anyone; besides, there was no evidence that people in substantial numbers would be provoked into some kind of physical action by the words on his jacket. Harlan recognized that "one man's vulgarity is another's lyric." In doing so, the Court protected two elements of speech: the emotive (the expression of emotion) and the cognitive (the expression of ideas). Thus, Harlan's arguments can be constructed in three major points: First, states (California) cannot censor their citizens in order to make a "civil" society. Second, knowing where to draw the line between harmless heightened emotion and vulgarity can be difficult. Third, people bring passion to politics and vulgarity is simply a side effect of a free exchange of ideas—no matter how radical they may be.

Government Action or Statute in Question:

Did California's statute, prohibiting the display of offensive messages such as "**** the Draft," violate freedom of expression as protected by the First Amendment?

Provision of the Constitution at Issue:

First Amendment Freedom of Expression, 14th Amendment