Court: Supreme Court of the United States; June 7, 1971; Federal Supreme Court; Federal Appellate Court
Paul Robert Cohen was convicted under California Penal Code 415 for disturbing the peace by wearing a jacket inscribed with "Fuck the Draft" in a courthouse, where women and children were present. He received a 30-day prison sentence. Cohen argued that his jacket was a form of expression against the Vietnam War and the draft, and did not engage in any violent behavior or create noise. The California Court of Appeal affirmed his conviction, interpreting "offensive conduct" as behavior likely to provoke violence. The California Supreme Court declined to review the case, prompting Cohen to appeal to the U.S. Supreme Court, which reversed the conviction. The Supreme Court established that Cohen's conviction was based solely on the offensiveness of his speech, not any separate conduct that could be regulated. It emphasized that the state could not punish Cohen for the content of his message unless there was intent to incite disobedience. The Court concluded that his conviction infringed upon his First and Fourteenth Amendment rights, and any regulation must pertain to the manner of expression rather than the content of the speech itself.
The First and Fourteenth Amendments do not provide absolute rights to free speech in all circumstances. In Cohen's case, the statute under which he was tried applies statewide, and there was no indication that specific types of speech would be restricted in certain locations, such as a courthouse. The phrase "offensive conduct" does not sufficiently inform individuals of such distinctions. This case does not fit within established categories where the government can more comprehensively regulate speech, like obscenity or "fighting words." Cohen's display of a vulgar message related to the draft does not rise to the level of obscenity, as it lacks the erotic nature required for such classification. Additionally, the language used was not directed at any individual present and did not incite violent reactions. Concerns about unwilling viewers do not justify the suppression of speech; the government can only restrict discourse if it invades substantial privacy interests in an intolerable manner. Thus, the state's action to prevent exposure to Cohen's protest cannot be upheld without evidence of significant harm to privacy.
A broader interpretation of the authority to regulate speech could allow a majority to suppress dissenting voices based purely on personal preferences. In contrast to situations involving disruptive noise, individuals in the Los Angeles courthouse could easily avoid unwanted exposure to certain expressions by simply looking away. While there is a stronger privacy interest in a courthouse than in a public park, it is not comparable to the privacy expected in one's home. If Cohen's speech is constitutionally protected, the mere fact that some unwilling listeners in a public space were briefly exposed to it cannot justify his conviction for breach of peace, especially without evidence that those unable to avoid his conduct actually objected to it. The statute leading to Cohen's conviction does not specifically address the issue of unwilling listeners but broadly prohibits any "offensive conduct" disturbing any individual or neighborhood. The core issue is whether California can classify a specific offensive word as "offensive conduct," either due to its potential to incite violence or as a measure to uphold public morality. The rationale used by the California court is flawed, reflecting an unfounded fear of disturbance that does not outweigh the right to freedom of expression. There is no substantial evidence that a large number of citizens are likely to respond violently to such expressions. The argument suggests that to prevent potential violence from a hypothetical group, the state may impose censorship, which is problematic. While it is not clear that the First and Fourteenth Amendments entirely prevent states from punishing offensive speech to maintain public discourse, a careful examination reveals the weaknesses in that perspective. Most situations justifying state regulation of speech would typically fall under established exceptions to the rule against governmental control over expression, which are not applicable in this case.
The constitutional right to free expression is fundamental in a diverse society, intended to free public discourse from government restrictions and empower individuals in their choices and dignity. While this freedom may result in discord and offensive language, such outcomes are necessary for achieving the broader values of open debate. The protection of speech extends to all forms of expression, regardless of their acceptability, as long as they are peaceful. The state's efforts to limit offensive language lack a clear, principled standard and risk overly sanitizing public discourse. The subjective nature of what constitutes vulgarity emphasizes that taste and style in language should be left to individuals rather than censored by government. Additionally, linguistic expression serves both cognitive and emotive purposes, and the Constitution recognizes the importance of emotional expression in communication. The right to criticize public figures includes not only responsible discourse but also the freedom to express oneself without restraint. Censorship of specific words poses a danger of suppressing ideas and unpopular views, and no compelling social benefit has been identified to justify such risks.
Absent a compelling justification, the State cannot criminalize the public display of a four-letter expletive without violating the First and Fourteenth Amendments. The relevant statute defines a misdemeanor for disturbing the peace through loud or offensive conduct, including the use of vulgar language in the presence of women or children, punishable by fines or imprisonment. There is uncertainty regarding the authoritative interpretation of this statute following the California Supreme Court's ruling in *In re Bushman*, which noted that disturbing the peace could involve inciting violence. The Court found no substantive distinction between the Bushman interpretation and that of the Court of Appeal. The context of Cohen’s arrest, which occurred only after leaving the courtroom, highlights issues of enforcement and interpretation. The statute's provisions on loud noise and vulgar language provide clearer prohibitions than the broader "offensive conduct" language, which lacks specificity and could unjustly penalize expressions based on assumed reactions. The case raises questions about whether the statute can be upheld on alternative justifications, and the Court refrains from ruling on an argument that the issue wasn't properly presented, given the statute’s broad application and its implications for free speech.
