Constitutional Law > Constitutional Law Keyed to Cohen > Governmental Control Of The Content Of Expression
Cohen v. California
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Brief Fact Summary.
Appellant Cohen wore a jacket into the Los Angeles Courthouse Corridor that bared the words “Fuck the Draft.” He performed this action in plain sight of women and children. Appellant was convicted for disturbing the peace through offensive conduct. The California Court of Appeals later upheld this conviction. Appellant then sought a writ of certiorari to the Supreme Court to reverse this conviction.
Synopsis of Rule of Law.
A state may not, consistent with the First and Fourteenth Amendments, criminalize the display of a single expletive which some may find to be offensive. To criminalize the conduct, the state must show proof of “fighting words”, in the form of a direct personal insult that is likely to cause others to commit violence. If the state cannot show this, it is an unconstitutional exercise of power to criminalize the conduct.
Appellant wore a jacket with the words “Fuck the Draft” to the Los Angeles courthouse corridor. Women and children were present in the corridor when Defendant walked through. Appellant testified that he wore the jacket as a means of informing the public of the depth of his feelings against the Vietnam War and the draft. The Appellant was indicted and convicted of violating a California statute that prohibited “maliciously and willfully disturbing the peace or quiet of any neighborhood or person by offensive conduct.” The California Court of Appeals, in affirming the conviction, held that offensive conduct means behavior which has a tendency to provoke others to acts of violence or to in turn disturb the peace, and it was reasonably foreseeable that Appellant conduct might cause others to commit an act of violence against defendant or to forcibly remove his jacket. Appellant then appealed this case to the Supreme Court asking the Court to reverse this conviction because this st
atute violates his First Amendment rights.
Whether, absent a more compelling reason for its action, the State may, consistent with the First and Fourteenth Amendment, make the simple public display of a single four-letter expletive a criminal offense?
No. More than just the simple public display of a single expletive is needed to rise to the level of a criminal offense. For example, states are free to ban the simple use, without a demonstration of additional justifying circumstances, of so-called “fighting words,” words that are personally abusive epithets, which, when addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke a violent reaction. In this case no individual actually or likely present could have regarded the words on Appellants jacket as a direct personal insult. Neither is the state’s argument that the presumed presence of unwitting viewers serves to automatically justify curtailing all speech capable of being offensive. The Court feels that it cannot indulge the assumption that one can forbid particular words without also running a substantial risk of suppressing ideas in the process. Suppressing certain words might run the risk of also censoring unpopular views, a
risk the Court is unwilling to take.
Appellant’s immature antic was mainly conduct and little speech, and the dissent therefore wishes to see the conviction of Appellant upheld.
This case stands for the idea that offensive conduct is not enough to criminalize otherwise protected speech. In order for offensive conduct to be criminalized it must somehow threaten public welfare and public safety by inciting others to commit violent conduct. This is similar to the standard for restricting the First and Fourteenth Amendment protections of free speech that was found in the Yates, as it possesses a requirement that the speech can cause imminent disorder, and therefore needs to be curtailed