Cohen v. California 1971

Appellant: Paul Robert Cohen

Appellee: State of California

Appellant's Claim: That convicting him for wearing a jacket that said "F———the Draft" in a county courthouse violated his freedom of speech.

Chief Lawyer for Appellant: Melville B. Nimmer

Chief Lawyer for Appellee: Michael T. Sauer

Justices for the Court: William J. Brennan, Jr., William O. Douglas, John Marshall Harlan II, Thurgood Marshall, Potter Stewart

Justices Dissenting: Hugo Lafayette Black, Harry A. Blackmun, Warren E. Burger, Byron R. White

Date of Decision: June 7, 1971

Decision: The Supreme Court overturned Cohen's conviction for disturbing the peace because it violated the First Amendment.

Significance: Cohen says the First Amendment protects profanity and other offensive language that is not obscene and does not provoke violence.

The Vietnam War, which lasted from 1955 until 1974 was a battle between North and South Vietnam. North Vietnam wanted to unite the country under communism. South Vietnam resisted with help from the United States. The United States used a military draft to build an army of Americans to fight in the war. By 1968, over 500,000 American troops were fighting in Vietnam.

Although the war was almost fifteen years old in 1968, there was no sign that North Vietnam would be defeated. Many Americans became opposed to the war. Some thought a civil war in Vietnam was not America's concern. They were angry to see young Americans die in a fight for another country. Others were generally opposed to human beings killing each other. Protests against the war became common in America. In Cohen v. California, the U.S. Supreme Court considered the case of a protestor in Los Angeles, California.

STUDENT PROTESTS, 1964–1967

T he student protest movement began in 1964 in Berkeley, California. In what became known as the Free Speech Movement, students pressed issues against an academic bureaucracy out of touch with the problems of contemporary society. Students staged sit-ins, strikes, sang folk songs, and created slogans to identify the targets of their protests. By 1965, with escalating events in Vietnam coming to the forefront, students rallied in opposition to the war. "Make Love Not War" became a new slogan. The draft system of the Selective Service was the most visible target of the government war policy spurring draft card burnings, sit-ins, and picketing of local draft boards. From 1965 to1967 the nature of the student protests slowly changed from peaceful demonstrations to more aggressive tactics including calls for outright revolution. During this time period student activism and protests dramatically increased on college campuses nationwide.

Disagreeing with the Draft

On April 26, 1968, police saw Paul Robert Cohen in the hall of a Los Angeles County courthouse wearing a jacket that said "F———the Draft." There were men, women, and children in the hall. When Cohen entered one of the courtrooms, a police officer asked the judge to punish Cohen for contempt of court. (Contempt means being disrespectful of the court or the judge.) The judge refused, so the officer arrested Cohen for disturbing the peace after Cohen returned to the hallway. California law made it a crime to disturb the peace with "offensive conduct."

At his trial, Cohen testified that he wore the jacket to share with the public his deep feelings against the Vietnam War and the military draft. The evidence showed that Cohen did not provoke any violence or make any loud noises. Despite this evidence, Cohen was convicted for disturbing the peace and sentenced to thirty days in jail.

Cohen appealed to the California Court of Appeals, which affirmed (approved) Cohen's conviction. In its decision, the court defined "offensive conduct" as behavior that tends to provoke violence or disturb the peace. The court said that Cohen's behavior could have angered someone enough to make him or her attack Cohen or try to remove Cohen's jacket. Cohen appealed again, but the Supreme Court of California decided not to review the case. As a last resort, Cohen appealed to the U.S. Supreme Court.

Cohen argued to the Supreme Court that his conviction violated the freedom of speech. The First Amendment protects free speech by saying "Congress shall make no law . . . abridging [limiting] the freedom of speech." States, including California, must obey the freedom of speech under the Due Process Clause of the Fourteenth Amendment. The Due Process Clause prevents a state or local government from passing a law that violates a person's right to life, liberty (or freedom), and property.

Cohen argued that wearing his jacket in the courthouse did not create a disturbance. Indeed, there was no evidence that the jacket offended anyone. Cohen said that the lack of evidence meant that California was punishing him only for protesting against the draft with vulgar language. In other words, California was punishing his speech.

Free speech prevails

With a 5–4 decision, the Supreme Court ruled in favor of Cohen and reversed his conviction. Writing for the Court, Justice John Marshall Harlan II agreed that California convicted Cohen solely because of his speech. Justice Harlan said that the conviction could not stand unless Cohen's speech was outside the protection of the First Amendment.

For instance, the First Amendment does not protect obscenity—speech about sex that is offensive and worthless. Justice Harlan said that Cohen's jacket was not obscene because it made a political statement, not a sexual one. The First Amendment also does not protect fighting words—words used to start a fight or cause violence. Justice Harlan said that Cohen's speech was not directed at anyone to start a fight, rather Cohen simply was protesting against the military draft.

JOHN MARSHALL HARLAN II

J ustice John Marshall Harlan II served on the U.S. Supreme Court from 1955 to 1971. (His grandfather, John Marshall Harlan, served on the Supreme Court from 1877 to 1911.) Before joining the Supreme Court, Harlan II enjoyed a career as a trial lawyer in New York, a military and public servant, and a judge on the United States Court of Appeals for the Second Circuit.

As a Supreme Court Justice, Harlan worked hard to achieve fairness in every case. Justice Harlan strongly believed that the Court should respect the other branches of the federal government, as well as the individual state governments. At the same time, he often sided with the rights of individuals. Four years before the Supreme Court recognized a general right of privacy, Justice Harlan called marital privacy a "fundamental right." Justice Harlan also wrote opinions protecting the First Amendment freedoms of speech and assembly. Speaking about Justice Harlan, Judge Henry Friendly said Justice Harlan enjoyed "nearly uniform respect" from his fellow justices and judges.

Justice Harlan said that the ultimate question was whether the government may punish people for using an offensive four-letter word. The answer was "no" because the First Amendment protects the right to use such language, especially in political speech. The United States adopted the First Amendment to allow people to criticize the government, which is exactly what Cohen had done. Justice Harlan said that if the government could prohibit certain words, it would have the power to prohibit the expression of emotions and ideas. The end result—government censorship of unpopular views—is forbidden by the freedom of speech.

Suggestions for further reading

Encyclopedia of the American Constitution. New York: Macmillan Publishing Company, 1986.

Evans, J. Edward. Freedom of Speech. Minneapolis: Lerner Publications, Inc., 1990.

Farish, Leah. The First Amendment: Freedom of Speech, Religion, and the Press. Hillside, NJ: Enslow Publishers, Inc., 1998.

King, David C. The Right to Speak Out. Brookfield, CT: Millbrook Press, 1997.

Klinker, Philip A. The First Amendment. Englewood Cliffs, NJ: Silver Burdett Press, 1991.

Pascoe, Elaine. Freedom of Expression: The Right to Speak Out in America. Brookfield, CT: Millbrook Press, 1992.

Steele, Philip, Philip Skele, and Penny Clarke. Freedom of Speech? New York: Franklin Watts, 1997.

Zeinert, Karen. Free Speech: From Newspapers to Music Lyrics. Hillside, NJ: Enslow Publishers, Inc., 1995.