In 1968, Paul Cohen peaceably entered the Los Angeles County Courthouse wearing a jacket visibly bearing the words ‘‘Fuck the Draft,’’ deliberately denouncing American involvement in Vietnam. He was convicted and sentenced to thirty days in jail under California Penal Code }415 that prohibited conduct that ‘‘maliciously or willfully disturbs the peace.’’ The California Court of Appeal upheld the conviction, ruling Cohen’s attire had ‘‘a tendency to provoke others’’ to violence or to disrupt the peace.
U.S. Supreme Court Justice John Marshall Harlan II ruled that because Cohen’s conviction relied on the offending words, his actions amounted to speech— not conduct—and were, therefore, protected under the First and Fourteenth Amendments. The rest of the opinion addressed state limits in restricting speech. Noting that Cohen neither showed intent to incite actual draft resistance, nor aimed any fighting words at bystanders, nor was there was a crowd ‘‘standing ready to strike out’’ against his words, Harlan maintained the government had no authority to censor speech for fear that violence or disruption could break out. He reminded the bench that the right to free expression was ‘‘powerful medicine’’ in a diverse population, because it cultivates ‘‘a more capable citizenry and more perfect polity’’—products especially important to a nation divided by war. Nor was Harlan persuaded that ‘‘Fuck’’ was a particularly inflammatory word requiring government regulation. He warned against sanitizing free speech without clear standards for measuring appropriateness because ‘‘one man’s vulgarity is another’s lyric.’’ Furthermore, such cleansing could cripple the emotive function of communication; often ‘‘grammatically palatable’’ words fail to express the emotions and ideas underlying expressive speech adequately. Harlan also rejected the state’s claim that Cohen’s jacket was especially egregious in the ‘‘decorous atmosphere’’ of the courthouse, because the penal code did not put Californians on notice that certain words or conduct were impermissible in specified circumstances. The speech also did not fall within the state’s police powers to prohibit obscenity where there was no intent to stimulate an erotic response from the people in the courthouse. Finally, Cohen’s words did not engage California’s authority to protect privacy and shield people from vulgarities, because those in the courthouse were neither captive nor powerless to avoid his jacket—they could simply look away. In a five to four split, Harlan reversed Cohen’s conviction.
Cohen is frequently cited in free speech cases, especially if matters of taste, audience captivity, or the suppression of ideas are at issue. Its legacy in First Amendment litigation, however, is cloudy because it is rarely central to Supreme Court rationale. The Court often sidesteps the ruling by distinguishing it as peculiar to the California courthouse circumstances. On its face, Cohen places most profanity under First Amendment protections by separating it from obscenity considerations. The opinion also invalidates state laws prohibiting all profanity in public, unless they define factors such as audience or location. In all, it seems that Harlan rescued profanity’s emotive function from state efforts to restrict expression to preserve social and moral order.
References and Further Reading
Cases and Statutes Cited
See also Application of First Amendment to States; Fighting Words and Free Speech; Freedom of Speech: Modern Period (1917–Present); Harlan, John Marshall II; Obscenity; Police Power of the State; Public Vulgarity and Free Speech; Speech and its Relation to Violence