Appellant Paul Cohen was convicted in the Los Angeles court of violating part of California penal code that prohibits “maliciously and willfully disturbing the peace or quiet of any neighborhood or person by offensive conduct.”
The States are free to ban the simple use, without a demonstration of additional justifying circumstances, of so-called fighting words, those personally abusive epithets which, when addressed to the ordinary citizen, are inherently likely to provoke violent reaction.
Appellant Paul Cohen was observed wearing a jacket bearing the words “Fuck the Draft” which were plainly visible. There were women and children present near him. He was arrested. He testified that he wore the jacket knowing that the words were on the jacket as a means of informing the public of the depth of his feelings against the Vietnam War and the draft. He did not engage in nor did anyone as the result of his conduct commit or threaten to commit any act of violence. Appellant did not make any loud or unusual noise nor was there any evidence that he uttered any sound prior to his arrest. He was convicted, however, for violating of California laws that prohibit maliciously and willfully disturbing the peace by offensive conduct.
Does the California penal code that prohibits “maliciously and willfully disturbing the peace or quiet of any neighborhood or person by offensive conduct” violate the Constitution?
Yes, the conviction clearly rests upon the asserted offensiveness of the words Cohen used to convey his message to the public. The only conduct which the State sought to punish is the fact of communication. The State certainly lacks power to punish appellant for the underlying content of the message the inscription conveyed. There has been no showing of an intent to incite disobedience to or disruption of the draft. Therefore, Cohen could not be punished for asserting the evident position on the immorality of the draft his jacket reflected.
While the four-letter word displayed by Cohen in relation to the draft is not uncommonly employed in a personally provocative fashion, in this instance, it was clearly not directed to the person of the hearer. No individual actually or likely to be present could reasonably have regarded the words on appellant’s jacket as a direct personal insult. Nor has there been an instance of the exercise of the State’s police power to prevent a speaker from intentionally provoking a given group to hostile reaction. Moreover, the rationale of the California court is plainly untenable. There is no evidence that substantial numbers of citizens are standing ready to strike out physically at whatsoever may assault their sensibilities with execrations like that uttered by Cohen. We cannot lose sight of the fact that, in what otherwise might seem a trifling and annoying instance of individual distasteful abuse of a privilege, these fundamental societal values are truly implicated. Absent a more particularized and compelling reason for its actions, the State may not, consistently with First and Fourteenth Amendments, make the simple public display here involved of this single four-letter expletive a criminal offense.