Cohen wore a jacket carrying the words “F— THE DRAFT. STOP THE WAR” in a Los Angeles courthouse, to express his criticism of the Vietnam War. He was convicted under California law.
A 4-letter expletive is not sufficient justification to allow states to restrict free speech. Free speech can be restricted only under severe circumstances beyond offensiveness, such as an intent to incite disobedience to or disruption of the draft.
A 19-year-old department store worker expressed his opposition to the Vietnam War by wearing a jacket emblazoned with “F— THE DRAFT. STOP THE WAR.” Cohen wore this jacket in a Los Angeles courthouse corridor, where other people were present. He did not engage in or threaten any violence. He was subsequently charged under a California statute that prohibits “maliciously and willfully disturb[ing] the peace and quiet of any neighborhood or person [by] offensive conduct.” Cohen was found guilty and sentenced to 30 days in jail.
May states constitutionally criminalize simple public displays, such as the one involved in the present case?
No, states may not criminalize simple public displays like the one involved in the present case, per the First and Fourteenth Amendments.
Cohen’s “absurd and immature antic” was mainly conduct rather than speech.
The rationale of the California courts is untenable. At most, it reflects a fear or apprehension of disturbance. However, this is not enough to overcome the right to freedom of expression. The freedom of expression is a fundamental societal value that ultimately produces a more capable citizenry and more perfect polity. States have no right to cleanse public debate to the point where it is grammatically palatable to the most sensitive among us. We cannot forbid particular words without also running a substantial risk of suppressing ideas in the process. If we did, governments might use censorship of particular words as a convenient guise for banning the expression of unpopular views. Thus, absent a more particularized and compelling reason for its actions, the state may not, consistently with the First and Fourteenth Amendments, make the simple public display here involved of this single 4-letter expletive a criminal offense.