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Cohen v. California: A Golden Anniversary from the Golden State

Today marks the 50th anniversary of Cohen v. California, which is more commonly known as the “F*** the Draft” case. This case, which seemed trivial at the time due to the immature and sophomoric nature of the language, has become one of the most significant First Amendment decisions of the last half century. Thankfully, Justice Harlan recognized that while the “case may seem at first blush . . .  inconsequential,” the issue presented was “of no small constitutional significance.”

The case started when Paul Cohen wore a jacket with the words “F*** the Draft” to the Los Angeles Municipal Court to protest the draft and the Vietnam War. He was at the court to testify in a trial. He did not speak to anyone in the corridor on the way to the courtroom. He made no threats. He did not cause a loud disturbance. He simply wore a jacket with an expletive on the back. Nevertheless, he was arrested, tried, and convicted under a California law which prohibited “maliciously and willfully disturb[ing] the peace or quiet of any neighborhood or person . . . by . . . offensive conduct.”

The California Court of Appeal found that Cohen’s conduct fell within these provisions explaining that “it was certainly reasonably foreseeable that such conduct might cause others to rise up to commit a violent act against the person of the defendant or attempt to forceably remove his jacket.” The California Supreme Court refused to review the case. So it fell to the U.S. Supreme Court to remedy the wrong done to Mr. Cohen—and fortunately, the Court obliged.

First, Justice Harlan, writing for the majority, deftly dispensed with the main thrust of California’s argument: that this jacket and this word would likely cause disturbances. The Court pointed out that just two years ago the Court had rejected just this line of thinking in Tinker v. Des Moines Independent Community School District. California presented no actual evidence that the wearing of a jacket with an expletive on it would actually cause some sort of violent response­—let alone responses in substantial enough numbers to allow for the restrictions on freedom of expression. The Court expounded on this, explaining: “[t]he ability of government, consonant with the Constitution, to shut off discourse solely to protect others from hearing it is, in other words, dependent upon a showing that substantial privacy interests are being invaded in an essentially intolerable manner.” To allow such a restriction without such a showing “amounts to little more than the self-defeating proposition that, to avoid physical censorship of one who has not sought to provoke such a response by a hypothetical coterie of the violent and lawless, the States may more appropriately effectuate that censorship themselves.”

Then, after dispensing with this argument, the Court turned to more general principles of First Amendment law. Justice Harlan’s explanation of the importance of the principle at stake deserves to be read in its entirely:

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 lyrics. 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.

The Court also pointed out that words not only express ideas but emotions as well. The words chosen for the jacket not only contained policy position (the draft is bad) but also an emotional degree to go along with that position (the draft is really bad). The Court explained that the evidence does not show that the drafters and ratifiers of the First Amendment had any intention of just protecting the ability to convey ideas detached from all emotion as the emotional language “may often be the more important element of the overall message sought to be communicated.”

In other words, 50 years ago the Supreme Court affirmed the principle that the First Amendment does not just protect popular speech and speech the community as a whole agrees with. It protects speech that some may find offensive. That potential offense is the price of living in a free society—a price well worth paying because, as Harlan explained, “one man’s vulgarity is another’s lyrics.” And who is to say what words or phrases society may deem vulgar and punishable decades from now.

Lastly, it bears noting that the Supreme Court is considering another case centered on vulgar speech. This case, Mahanoy Area School District v. B.L., centers on a student who used the same word on social media instead of a jacket and used it to convey a very different message. Both my colleague Katrin Marquez and I have written about this case in previous blog posts. It would be quite fitting if the Supreme Court handed down its ruling in that case today, the 50th anniversary of another Supreme Court decision about the First Amendment and expletives.

Adam Shelton is a fellow with IJ’s Center for Judicial Engagement.

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