Cohen v. California
Does the First Amendment protect an individual from criminal prosecution for publicly displaying a profane political message on clothing in a courthouse, where the prosecution is based on a state breach-of-the-peace statute targeting 'offensive conduct'?
The Decision
5-4 decision · Opinion by John Marshall Harlan II · 1971
Majority Opinion— John Marshall Harlan IIconcurring ↓dissent ↓
In a 5–4 decision authored by Justice John Marshall Harlan II, the Supreme Court reversed Cohen's conviction. The Court held that the First and Fourteenth Amendments prohibited the state from making the simple public display of a single four-letter expletive a criminal offense. The majority opinion is one of the most celebrated defenses of free expression in American constitutional law.
Justice Harlan began by carefully narrowing what the case was actually about. This was not a case about obscenity, because Cohen's message was not erotic in nature. It was not a case about 'fighting words' — the kind of direct personal insults that the Court had recognized could be punished — because the words on the jacket were not directed at any specific individual and no one could reasonably have regarded them as a personal provocation to a fight. It was not a case about a captive audience, because people in the courthouse corridor could simply avert their eyes from a message they found distasteful. And it was not a case about regulating the time, place, or manner of speech in a content-neutral way, because the prosecution was based entirely on the offensiveness of the particular word Cohen used.
Having established what the case was not about, Justice Harlan addressed what it was about: the government's attempt to punish a person for the content and emotional force of his chosen words. The majority concluded that this was impermissible. Harlan wrote that the state has no right to 'cleanse public debate to the point where it is grammatically palatable to the most squeamish among us.' In one of the opinion's most famous passages, he observed that 'one man's vulgarity is another's lyric,' and warned that empowering the government to decide which words are too offensive for public discourse would risk suppressing the kind of passionate, forceful expression that is essential to democratic self-governance.
Critically, the Court recognized that words convey not just ideas but emotions, and that the emotive force of language is often inseparable from its message. To forbid certain words is to risk suppressing the ideas and feelings they uniquely convey. The majority emphasized that the constitutional right of free expression is a powerful medicine in a society as diverse as the United States, and that the government cannot be trusted to distinguish between acceptable and unacceptable levels of vulgarity without creating an unacceptable risk of censorship. The conviction was reversed.
Concurring Opinions
There were no separately written concurring opinions in this case; all five justices in the majority joined Justice Harlan's opinion in full.
Dissenting Opinions
Harry Blackmunjoined by Warren E. Burger, Hugo Black
Justice Blackmun wrote a brief dissent arguing that Cohen's conduct amounted to 'mainly conduct and little speech' and was an absurd, immature antic rather than a meaningful exercise of free expression. He suggested the case was not worthy of the Court's attention and that the conviction could stand.
- Cohen's antic was primarily conduct rather than protected speech, and the First Amendment should not shield such behavior from a legitimate state breach-of-the-peace statute.
- The case was too trivial and fact-bound to warrant the Court's review, and the California courts were better positioned to evaluate whether Cohen's behavior constituted offensive conduct under state law.
Byron White
Justice White dissented without writing a separate opinion, indicating his disagreement with the majority's conclusion that the First Amendment barred Cohen's conviction but declining to elaborate on his reasoning.
- Justice White's dissent was noted without opinion, leaving the specific grounds for his disagreement unstated.
Background & Facts
On April 26, 1968, Paul Robert Cohen walked through a corridor of the Los Angeles County Courthouse wearing a jacket that bore the plainly visible words 'Fuck the Draft.' The United States was deeply embroiled in the Vietnam War, and anti-draft sentiment was widespread. Cohen wore the jacket as an expression of his opposition to the military draft and the Vietnam War. He did not engage in any violent or threatening behavior, did not make any loud or unusual noise, and there was no evidence that anyone in the courthouse reacted violently or was provoked to violence by the message on his jacket. A police officer in the courtroom sent a note to the presiding judge suggesting Cohen be held in contempt of court, but the judge declined. Cohen was subsequently arrested in the courthouse corridor by the officer.
Cohen was charged and convicted under California Penal Code Section 415, which prohibited 'maliciously and willfully disturbing the peace or quiet of any neighborhood or person... by... offensive conduct.' He was sentenced to 30 days in the county jail. At trial, Cohen testified that he wore the jacket as a means of expressing his deep opposition to the Vietnam War and the draft. The prosecution did not allege that Cohen had directed his message at any particular person or engaged in any conduct beyond wearing the jacket.
The California Court of Appeal affirmed Cohen's conviction, reasoning that 'offensive conduct' under the statute could include behavior that had a tendency to provoke others to acts of violence or to disturb the peace. The court concluded that Cohen's conduct was inherently likely to cause a violent reaction. The Supreme Court of California declined to review the case, denying Cohen's petition for hearing.
Cohen then petitioned the United States Supreme Court for review. The Court agreed to hear the case because it raised an important question at the intersection of free speech and the government's power to regulate public conduct: namely, whether a state could criminalize the mere public display of a single profane word in the context of political protest. The case arrived at the Court during a period of intense national debate about the limits of free expression, civil disobedience, and protest against the war.
The Arguments
Cohen argued that his conviction violated the First and Fourteenth Amendments because wearing a jacket with a political message — even one containing profanity — was a form of protected speech. He contended that the government could not criminalize the mere use of a single vulgar word in a political statement without unconstitutionally restricting free expression.
- The message on the jacket was a form of political protest against the Vietnam War and the draft, which is precisely the kind of expression the First Amendment is designed to protect.
- Cohen directed his message at no particular person, made no threatening gestures, and did not engage in any conduct that could constitute a direct personal insult or 'fighting words.'
- Allowing the state to punish the use of particular words in public discourse would give the government an unacceptable power to censor speech based on its content and the sensitivities of onlookers.
The State of California argued that Cohen's conviction was a valid exercise of the state's police power to maintain public order and decorum, especially in a courthouse. California contended that the offensive conduct provision of its breach-of-the-peace statute could properly be applied to punish the public display of vulgar language.
- The courthouse is a place where the state has a legitimate interest in maintaining decorum and order, and Cohen's jacket was inherently likely to cause a disturbance.
- The statute targeted offensive conduct, not speech, and the state has authority to regulate conduct that disturbs the peace regardless of any communicative intent.
- Unwilling viewers in the courthouse, including women and children, were effectively a captive audience forced to confront a vulgar word they could not easily avoid.