Appellant
Paul Robert Cohen
Appellee
The State of California
Appellant's Claim
That wearing a jacket bearing a controversial opinion about the draft in a county courthouse constituted political speech protected by the First Amendment.
Chief Lawyer for Appellant
Melville B. Nimmer
Chief Lawyer for Appellee
Michael T. Sauer
Justices for the Court
William J. Brennan, Jr., William O. Douglas, John Marshall Harlan II (writingfor the Court), Thurgood Marshall, Potter Stewart
Justices Dissenting
Hugo Lafayette Black, Harry A. Blackmun, Warren E. Burger, Byron R. White
Place
Washington, D.C.
Date of Decision
7 June 1971
Decision
The Supreme Court struck down Cohen's conviction for disturbing the peace.
Significance
Cohen extended the boundaries of First Amendment protection for speechwhich is potentially provocative or obscene.
Paul Robert Cohen was arrested in the Los Angeles County Courthouse, where hewas roaming the corridors while wearing a jacket with "F*** the Draft" emblazoned across the back. Although he was making no noise at the time of his arrest, he was convicted under a state statute outlawing willful and malicious disturbance of the peace and sentenced to 30 days in jail. Although Cohen testified that he wore the jacket with full knowledge of what it said, he also stated that he did so to express the depth of his feeling about the war in Vietnam. Citing his First Amendment guarantee of free speech, he appealed his conviction to the Court of Appeals of California, then to the State Supreme Court. After both upheld his conviction, he appealed to the U.S. Supreme Court.
The Court first determined that Cohen had been convicted solely because of the words on his back, rather than any offensive conduct. In the words of the opinion of the Court, written by Justice Harlan, " . . . the only `conduct' which the State sought to punish is the fact of the communication." The Court next had to ascertain whether or not these words--in the context in which theyhad received their expression--fell under any of the exceptions to First Amendment protection. Harlan conceded that while the expletive Cohen used may have been vulgar, it was not legally obscene. Neither did it constitute "fighting words" intended to incite a violent response--while the phrase might havebeen provocative, it was not aimed at anyone in particular.
Court Upholds First Amendment Protection for Nonverbal Aspects of Communication
Since the language on Cohen's jacket did not fall under any of the exceptionsto First Amendment protection, California was prohibited from punishing himsolely because of the content of that language. The only issue remaining in the case was whether or not the state had the power to preserve the cleanliness of public speech. But this, the Court said, the state could not do.
Cohen is thought of as a landmark case because it sought to protect speech which could be either provocative or obscene but which, taken in context, is neither. By prohibiting the manner of expression in a case such as this,government runs the impermissible risk of censoring the message. What remains unstated but still arguably implicit in the Court's opinion is that at theheart of Robert Paul Cohen's "speech" lies the expression of a political sentiment--strong disagreement with an unpopular war--which is the very type of speech the First Amendment was most clearly designed to protect.
Related Cases
Paul Robert Cohen
Appellee
The State of California
Appellant's Claim
That wearing a jacket bearing a controversial opinion about the draft in a county courthouse constituted political speech protected by the First Amendment.
Chief Lawyer for Appellant
Melville B. Nimmer
Chief Lawyer for Appellee
Michael T. Sauer
Justices for the Court
William J. Brennan, Jr., William O. Douglas, John Marshall Harlan II (writingfor the Court), Thurgood Marshall, Potter Stewart
Justices Dissenting
Hugo Lafayette Black, Harry A. Blackmun, Warren E. Burger, Byron R. White
Place
Washington, D.C.
Date of Decision
7 June 1971
Decision
The Supreme Court struck down Cohen's conviction for disturbing the peace.
Significance
Cohen extended the boundaries of First Amendment protection for speechwhich is potentially provocative or obscene.
Paul Robert Cohen was arrested in the Los Angeles County Courthouse, where hewas roaming the corridors while wearing a jacket with "F*** the Draft" emblazoned across the back. Although he was making no noise at the time of his arrest, he was convicted under a state statute outlawing willful and malicious disturbance of the peace and sentenced to 30 days in jail. Although Cohen testified that he wore the jacket with full knowledge of what it said, he also stated that he did so to express the depth of his feeling about the war in Vietnam. Citing his First Amendment guarantee of free speech, he appealed his conviction to the Court of Appeals of California, then to the State Supreme Court. After both upheld his conviction, he appealed to the U.S. Supreme Court.
The Court first determined that Cohen had been convicted solely because of the words on his back, rather than any offensive conduct. In the words of the opinion of the Court, written by Justice Harlan, " . . . the only `conduct' which the State sought to punish is the fact of the communication." The Court next had to ascertain whether or not these words--in the context in which theyhad received their expression--fell under any of the exceptions to First Amendment protection. Harlan conceded that while the expletive Cohen used may have been vulgar, it was not legally obscene. Neither did it constitute "fighting words" intended to incite a violent response--while the phrase might havebeen provocative, it was not aimed at anyone in particular.
Court Upholds First Amendment Protection for Nonverbal Aspects of Communication
Since the language on Cohen's jacket did not fall under any of the exceptionsto First Amendment protection, California was prohibited from punishing himsolely because of the content of that language. The only issue remaining in the case was whether or not the state had the power to preserve the cleanliness of public speech. But this, the Court said, the state could not do.
First, the principle contended for by the State seems inherently boundless. How is one to distinguish this from any other offensive word? Surely the State has no right to cleanse public debate to the point where it is grammatically palatable to the most squeamish among us . . . one man's vulgarity is another's lyric . . . Additionally . . . much linguistic expression serves a dual communicative function: it conveys not only ideas . . . but otherwise inexpressible emotions as well . . . We cannot sanction the view that the Constitution, while solicitous of the cognitive content of individual speech, has little or no regard for that emotive function which . . . may often be the moreimportant element of the overall message . . .
Cohen is thought of as a landmark case because it sought to protect speech which could be either provocative or obscene but which, taken in context, is neither. By prohibiting the manner of expression in a case such as this,government runs the impermissible risk of censoring the message. What remains unstated but still arguably implicit in the Court's opinion is that at theheart of Robert Paul Cohen's "speech" lies the expression of a political sentiment--strong disagreement with an unpopular war--which is the very type of speech the First Amendment was most clearly designed to protect.
Related Cases
- Schenck v. United States, 249 U.S. 47 (1919).
- Chaplinsky v. New Hampshire, 315 U.S. 568 (1942).
- Edwards v. South Carolina, 372 U.S. 229 (1963).
- Bethel School District v. Fraser, 478 U.S. 675 (1986).
Further Readings
- Blanchard, Margaret A. Revolutionary Sparks: Freedom of Expressionin Modern America. New York: Oxford University Press, 1992.
- Greenawalt, Kent. Fighting Words: Individuals, Communities, and Liberties of Speech. Princeton, NJ: Princeton University Press, 1995.
- Schauer, Frederick F. Free Speech: A Philosophical Inquiry. New York: Cambridge University Press, 1982.
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