Freedom of Association and Assembly / Protests, Political Expression, Public Order
Whitney v. California
Closed Expands Expression
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The U.S. Supreme Court overturned a man’s conviction of “disturbing the peace..by…offensive conduct.” Paul Robert Cohen was arrested under the California Penal Code § 415 for “disturbing the peace” after wearing a jacket that said “Fuck the Draft” in a municipal courthouse in California. The Court found that this conviction under Section 415 was unlawful, as the conviction hinged upon the socially objectionable nature of the word “fuck” rather than established legally-permissible restrictions such as “fighting words” or for a sufficiently important governmental interest.
On April 26, 1968, Paul Robert Cohen (Cohen) was in the Los Angeles County Courthouse wearing a jacket bearing the phrase “Fuck the Draft.” The words were plainly visible, and, according to Cohen, “a means of informing the public of the depth of his feelings against the Vietnam War and the draft.” (at 16, quoting U.S., People v. Cohen, 1 Cal. App. 3d 94, 97-98 (1969).) Cohen did not make any loud noises, cause a ruckus, create any disruption, threaten any bystanders, or commit any acts of violence. Upon entering a courtroom in the building, Cohen “removed his jacket and stood with it folded over his arm.” (at 19 n.3.) A policeman suggested to the presiding judge that the court hold Cohen in contempt of court. The judge declined. The officer then arrested Cohen as he emerged from the courtroom.
California Penal Code § 415 (“Section 415” or “the statute”) prohibits “maliciously and willfully disturb[ing] the peace or quiet of any neighborhood or person … by … offensive conduct.” The Los Angeles Municipal Court convicted Cohen of violating Section 415 for wearing the jacket in the courthouse, sentencing him to 30 days of imprisonment.
Cohen’s conviction was upheld by the California Court of Appeals, which found that Cohen’s jacket was “offensive conduct” in that it was behavior reasonably foreseeable to provoke others to react violently. The California Supreme Court took a vote to hear the case, and declined to review Cohen’s appeal. The Supreme Court of the United States granted certiorari to hear the case.
Harlan, J., delivered the opinion of the Court.
The Court first considered and was satisfied that it had jurisdiction to hear the case because Cohen had exhausted his appeal route in California. He had argued that Section 415 infringed his freedom of expression rights guaranteed under the First and Fourteenth Amendments of the U.S. Constitution which contention had been rejected by the highest California state court in which review could be had.
The Court went on to clarify what was not at issue in the case in order to identify the precise matter that was in issue.
Firstly, the conviction was clearly on speech and not on expressive conduct which can be regulated if there is a sufficiently important governmental interest justifying a limitation on First Amendment freedom (United States v. O’Brien). Also, because Cohen was not intending to incite disobedience or disrupt the draft, this was not a case for which Cohen could be punished for the underlying content of the message.
The Court stated that the First and Fourteenth Amendments have never been thought to give absolute protection to every individual to speak whenever or wherever he pleases, or to use any form of address in any circumstances that he chooses. However, it went on to note that several well-established exceptions were not evident in this case.
First, there was no language limiting Section 415 to a courthouse, where seeking to “preserve an appropriately decorous atmosphere” could have been a legitimate interest for the government. The statute applied to the entire state of California, and made no distinction between locations. It was also not a case of “obscenity”, a category of speech the government may regulate when the speech is erotic or sexually charged in some way. Cohen’s speech was also not prohibited as “fighting words”, which are “those personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke violent reaction”. While the profane four-letter word on Cohen’s jacket is often used in a provocative fashion, no one reading Cohen’s jacket would have interpreted it as directed at them or antagonizing a certain group. Finally, the government could not regulate Cohen’s speech to protect the especially sensitive, because Cohen’s speech occurred in public. Whereas the government may “prohibit intrusion into the privacy of the home of unwelcome views and ideas which cannot be totally banned from the public dialogue … we are often ‘captives’ outside the sanctuary of the home and subject to objectionable speech”. (U.S., Rowan v. Post Office Dept., 397 U.S. 728, 738 (1970).) Cohen invaded no one’s privacy by wearing the jacket in the public.
Having concluded that Cohen’s conviction did not come within any of the narrow categories that would have allowed the government to prohibit Cohen’s speech, the Court concluded that Cohen’s conviction was solely based on his use of the word “fuck”. Put another way, could California use the guise of “offensive conduct” to excise “one scurrilous epithet from the public discourse” either upon a theory that it “is inherently likely to cause a violent reaction” or, acting as the “guardians of public morality” remove the word “from the public vocabulary”. The Court said that while the word at issue may have been more objectionable than most, distinguishing one offensive word from another is not something to be left to the states. “For, while the particular four-letter word being litigated here is perhaps more distasteful than most others of its genre, it is nevertheless often true that one man’s vulgarity is another’s lyric. … [T]he Constitution leaves matters of taste and style so largely to the individual.”
The Court said that freedom of expression is a “powerful medicine” in a democratic society, and trifling too much with the manner of that expression inherently limits the desired expression. The Court could not “indulge the facile assumption that one can forbid particular words without also running a substantial risk of suppressing ideas in the process” especially when “words are often chosen as much for their emotive as their cognitive force”.
In summing up the Court said that without a more particularized and compelling reason for its actions, the State could not, consistently with the First and Fourteenth Amendments, make the simple public display of the single four-letter expletive a criminal offense. “Because that is the only arguably sustainable rationale for the conviction here at issue, the judgment below must be reversed.”
Blackmun, J., filed a dissenting opinion, in which Burger, C.J., and Black, J., joined. Justice Blackmun dissented for two reasons: 1. Cohen’s jacket was more conduct than speech, and thus the government had greater latitude to restrict it and, further, it was a case of “fighting words” within Chaplinsky; and 2. The Court should have remanded the case back to California in light of the 1970 California Supreme Court case interpreting Section 415. White, J., concurred with the second part of the dissenting opinion.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The Court’s 5-4 ruling cleared a wider field for freedom of speech by ruling that states cannot use “offensive conduct” language in laws to criminalize viewpoints or specific words, such as the word “fuck” brandished on Cohen’s jacket. It specifically warned against the prospect that government could ban words to discriminate against unpopular views.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
at 375-77 (Brandeis, J., concurring)
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United State Supreme Court cases are binding and mandatory authority upon all lower courts and jurisdictions in the country.
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