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Legal Principle at Issue

Whether arresting someone for wearing a jacket that says “Fuck the Draft” under a California statute which prohibits “offensive conduct” violated the First Amendment.

Action

The application of the statute to Cohen’s expression was ruled to be unconstitutional because it did not meet the standard for fighting words or obscenity. The Court also rejected the state’s reasoning that they needed to protect unwilling viewers from Cohen’s display, noting that unwilling viewers “could effectively avoid further bombardment of their sensibilities by averting their eyes.”

(This audio from Free Speech Out Loud is also available on Apple Podcasts, Spotify, and all other podcast apps.)

Facts/Syllabus

Paul Robert Cohen was convicted of violating California Penal Code § 415, which criminalizes "maliciously and willfully disturb[ing] the peace or quiet of any neighborhood or person . . . by . . . offensive conduct," for wearing a jacket with the phrase "Fuck the Draft" printed on the back. Cohen wore the jacket in the Los Angeles County Courthouse, and argued that his display of the expletive was there to communicate the sincerity and depth of his feelings regarding the draft and the Vietnam War. Women and children were present in the hallway of the courthouse where Cohen was arrested, and their presence was used as justification for his arrest. Cohen argued that his conviction violated his First Amendment rights through the Fourteenth Amendment's incorporation of those rights against the states. His argument was unsuccessful in front of the state court of appeals, which upheld his conviction. The State of California had argued that wearing the jacket constituted conduct, not speech, and therefore the conviction was justified and did not violate the First Amendment. The Supreme Court of the United States disagreed, holding that wearing the jacket was, in fact, speech. Further, although expletives can be used as "fighting words," they must be directed at the listener, and Cohen's jacket was not. Potentially offended parties had the choice of looking away. Accordingly, California's statute as applied violated Cohen's First and Fourteenth Amendment rights, and the decision of the California Court of Appeals was reversed.

Importance of Case

The Supreme Court famously held in Cohen that "[o]ne man's vulgarity is another's lyric." Id. at 25. In so doing the Court acknowledged that even speech that is undignified or offensive to others is nonetheless worthy of protection. To hold otherwise would turn the government into an all-too-powerful censor. The Court explained: "Surely the State has no right to cleanse public debate to the point where it is grammatically palatable to the most squeamish among us." Id. The fact that someone may be offended does not justify censorship, and even offensive speech has value.