COHEN v. CALIFORNIA 403 U.S. (1971)

Cohen was convicted of disturbing the peace. He wore a jacket bearing the words "Fuck the draft" while walking down a courthouse corridor. In overturning the conviction, a 5–4 Supreme Court held that the fighting words exception to first amendment protection did not apply where "no individual … likely to be present could reasonably have regarded the words … as a direct personal insult," and there was no showing that anyone who saw Cohen was in fact violently aroused or that … [he] … intended such a result." Both majority and dissenters suggested that the failure to show that violence was imminent as the result of the words was fatal to the state's case. The Court thus made clear that words, in the abstract, cannot be read out of the First Amendment; the "fighting words" doctrine depends on the context in which words are uttered.

The state's assertion of other justifications for punishing Cohen were similarly rejected: the jacket's message was not obscenity, because it was not erotic; the privacy interests of offended passers-by were insubstantial in this public place, and anyone offended might look away; there was no captive audience.

Cohen's chief doctrinal importance lies in its rejection of the notion that speech can constitutionally be prohibited by the state because it is offensive. Because offensiveness is an "inherently boundless" category, any such prohibition would suffer from the vice of vagueness. And the First Amendment protects not only the cool expression of ideas but also "otherwise inexpressible emotions."

Martin Shapiro
(1986)