Cohen v. California (1971)
Tuesday, December 8, 2009 at 10:30PM Read the opinion here.
Issue. Did the State of California violate the First Amendment right to Freedom of Speech when it prosecuted an individual for disturbing the peace because he wore a jacket that said "Fuck the Draft"?
Background. Cohen was arrested and convicted under a California law that prohibited "maliciously and willfully disturb[ing] the peace or quiet of any neighborhood or person [by] offensive conduct." All Cohen did was wear a jacket in public that said "Fuck the Draft."
Cohen did not engage in, nor threaten to engage in, nor did anyone as the result of his conduct in fact commit or threaten to commit any act of violence. Still, the state court upheld the conviction because it held that "offensive conduct" meant "behavior which has a tendency to provoke others to acts of violence or to in turn disturb the peace." It was certainly foreseeable that Cohen's action might cause others to commit a violent act against the Defendant or force on to forcibly remove his jacket.
The Supreme Court reversed the conviction.
Court's Analysis. It is undisputed that the State could not punish Cohen for the message he conveyed. There must be some sort of incitement involved, which is not the case here.
The focus was on the word "Fuck." The word is not obscene, which can be restricted, because obscene requires something to be erotic. The word itself also cannot be regarded as "fighting words" which can also be punished. The words were general in nature and not directed to any particular individual or serve as a direct personal insult.
Finally, the fact that the vulgar word was thrust upon women and children does not make it criminal. The exposure to the word was fleeting and people could just avert their eyes. It especially did not rise to the level of conviction.
California's broad interpretation of "offensive conduct" was just too broad when it encompassed words that might happen to lead to violence. The State could not censor words just to prevent some hypothetical violence. Further, it cannot censor words to make for a decorous public space. The Court notes:
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 gramatically palatable to the most squeamish among us. . .one man's vulgarity is another's lyric.
Under the Constitution, the ultimate and best source of taste and style is left to the individual. Thus, the State cannot, consistently with the Constitution, prosecute an individual for the mere display of "Fuck" or another swear word.