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Cohen v. California

    Citation. 403 U.S. 15, 91 S. Ct. 1780, 29 L. Ed. 2d 284 (1971)

    Brief Fact Summary. The Defendant, Cohen’s (Defendant) conviction, for violating a California law by wearing a jacket that had “f— the draft” on it was reversed by the Supreme Court of the United States (Supreme Court) which held such speech was protected.

    Synopsis of Rule of Law. Emotive speech that is used to get attention is protected by the constitution.

    Facts. The Defendant was convicted under a California law for wearing a jacket that had on it, “F— the draft” outside the municipal courthouse during the Vietnam War. The Defendant did not threaten or engage in any act of violence. The state court affirmed his conviction holding that “offensive conduct” means “behavior which has a tendency to provoke others to acts of violence or to in turn disturb the peace.”

    Issue. Whether California can excise, as “offensive conduct,” one particular scurrilous epithet from the public discourse, either upon the theory of the court below that its use is inherently likely to cause violent reactions or upon a more general assertion that the states, acting as guardians of the public morality, may properly remove this offensive word from the public vocabulary?

    Held. No. Judgment of the lower courts reversed. Defendant’s speech is protected by the First Amendment of the United States Constitution (Constitution). The only conviction that the state sought to punish was communication. Thus, this case rests solely upon “speech.” The state lacks power to punish Defendant for the content of his message because he showed no intent to incite disobedience to the draft. Thus, his conviction rests upon his exercise of the “freedom of speech” and can only be justified as a valid regulation of the manner in which he exercised that freedom. This is not an obscenity case because his message is not erotic. This case does not involve “fighting words” because his message is not directed at another person. Further, the public is free to avert their eyes from the distasteful message. His message constitutes emotive speech because it seeks to get our attention. This speech is protected by the First Amendment of the Constitution. Therefore, his conviction must b
    e overturned.

    Dissent. Defendant’s conviction should be sustained because his antic was mainly conduct and the case involves “fighting words.”

    Discussion. This case categorizes a new kind of speech, emotive speech. It also holds that it is not enough to find speech unprotected merely because it creates a disturbance to the public.


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