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| Cohen v. California | |
|---|---|
| Litigants | Cohen v. California |
| Arguedate | March 21, 1971 |
| Decidedate | June 7, 1971 |
| Citation | 403 U.S. 15 (1971) |
| Holding | A conviction for disturbing the peace for wearing a jacket bearing the words "F*** THE DRAFT" violated the First Amendment. |
| Majority | Harlan |
| Joinmajority | Brennan, Stewart, White, Marshall |
| Concurrence | Blackmun |
| Dissent | Black |
| Lawsapplied | First Amendment to the United States Constitution |
Cohen v. California
Cohen v. California was a United States Supreme Court decision clarifying the scope of protected expression under the First Amendment to the United States Constitution in the context of public protest and offensive language. The Court reversed a conviction for disturbing the peace stemming from a jacket bearing the phrase "F*** THE DRAFT," emphasizing limits on censoring speech based on content or offensiveness. The ruling has been influential in subsequent disputes involving symbolic speech, civil liberties, and criminal statutes regulating public order.
The case arose during the era of the Vietnam War, amid widespread protests against the Selective Service System and military conscription. The decision built on prior First Amendment jurisprudence such as New York Times Co. v. Sullivan, Tinker v. Des Moines Independent Community School District, and Brandenburg v. Ohio, and engaged principles from earlier Supreme Court rulings on symbolic expression involving West Virginia State Board of Education v. Barnette and Stromberg v. California. Debates over permissible restrictions on speech intersected with actions by municipal authorities like the Los Angeles Police Department and local enactments similar to ordinances enforced in jurisdictions such as San Francisco and New York City.
On October 18, 1968, Paul Robert Cohen entered a corridor of the Los Angeles Superior Court wearing a jacket emblazoned with the words "F*** THE DRAFT." He did not physically obstruct passage or engage in violent conduct. A deputy sheriff, citing a Los Angeles municipal ordinance against "maliciously and willfully disturbing the peace or quiet of any neighborhood or person," arrested Cohen and charged him with breach of the peace under California law. The arrest occurred in the context of demonstrations and public actions tied to anti-war activism associated with organizations like the Students for a Democratic Society and events such as the 1968 Democratic National Convention protests.
At trial in the Superior Court of California, Cohen was convicted for disturbing the peace and fined $50. On appeal, the California Courts of Appeal and the California Supreme Court upheld the conviction, relying on precedents addressing fighting words and breach-of-peace doctrines such as Chaplinsky v. New Hampshire and Terminiello v. Chicago. Counsel for Cohen included attorneys experienced in civil liberties advocacy associated with groups like the American Civil Liberties Union and practitioners who had litigated matters before the Supreme Court of the United States in cases involving obscenity and protest. Following exhaustion of state remedies, the case reached the Supreme Court via a petition for a writ of certiorari.
In a 5–4 decision authored by Justice John M. Harlan II, the Court reversed Cohen's conviction, holding that the state could not, consistent with the First Amendment to the United States Constitution as incorporated against the states by Gitlow v. New York and clarified in later cases, punish an individual for simply wearing a jacket bearing an expletive. The majority contrasted the case with the fighting-words doctrine of Chaplinsky v. New Hampshire and public order considerations articulated in Feiner v. New York, concluding that the speech at issue was not directed at a particular person and did not present an imminent threat of provoking immediate violence. Justice Harry Blackmun wrote a separate concurrence respecting narrow aspects of the holding. Justice Hugo L. Black dissented, emphasizing permissive regulation of offensive language in public spaces.
The majority applied principles from cases such as Roth v. United States and Miller v. California concerning expression and limits, but emphasized that offensiveness alone is insufficient to justify content-based suppression. The Court framed the dispute as balancing expressive autonomy recognized in Texas v. Johnson-like symbolic speech precedents against municipal interests in public order reflected in ordinances enforced by entities like the Los Angeles Police Department. Harlan's opinion stressed that the State may not make the simple public display of a single expletive a criminal offense without affronting the protections established in prior decisions involving symbolic speech and expressive conduct adjudicated by the Court. The ruling reinforced that categories such as "obscenity" and "fighting words" remain limited exceptions, while broad prohibitions on "offensive" speech must satisfy stringent constitutional scrutiny articulated across First Amendment doctrine.
Cohen influenced later rulings on expressive conduct and public protest, informing decisions involving flag desecration in Texas v. Johnson and issues about speech codes and campus expression in cases tied to institutions like Columbia University and University of California. The decision has been cited in challenges to municipal ordinances and statutes regulating signs, placards, and apparel during demonstrations by groups including National Organization for Women and veterans' organizations such as the Veterans of Foreign Wars. Scholars in journals associated with Harvard Law School, Yale Law School, and Columbia Law School have debated its reach regarding "offensive" speech regulation, and litigants continue to invoke its principles in federal and state courts, including the United States Court of Appeals for the Ninth Circuit and the Supreme Court of the United States in subsequent First Amendment controversies.
Category:United States Supreme Court cases Category:1971 in United States case law Category:First Amendment to the United States Constitution