U.S. Supreme Court Cohen v. California, 403 U.S.
15 (1971) Cohen v. California No. 299 Argued February 22,
1971 Decided June 7, 1971 403 U.S.
15 APPEAL FROM THE COURT OF APPEAL OF
CALIFORNIA, SECOND APPELLATE
DISTRICT Syllabus Appellant was convicted of violating that part of Cal.Penal Code
§ 415 which prohibits "maliciously and willfully disturb[ing] the
peace or quiet of any neighborhood or person . . . by . . .
offensive conduct," for wearing a jacket bearing the words "Fuck
the Draft" in a corridor of the Los Angeles Courthouse. The Court
of Appeal held that "offensive conduct" means "behavior which has a
tendency to provoke others to acts of violence or to in
turn disturb the peace," and affirmed the conviction. Held: Absent a more particularized and compelling
reason for its actions, the State may not, consistently with the
First and Fourteenth Amendments, make the simple public display of
this single four-letter expletive a criminal offense. Pp. 403 U. S.
22 -26. 1 Cal. App. 3d
94 , 81 Cal. Rptr.
503 , reversed.

															HARLAN, J., delivered the opinion of the Court, in which
DOUGLAS, BRENNAN, STEWART, and MARSHALL, JJ., joined. BLACKMUN, J.,
filed a dissenting opinion, in which BURGER, C.J., and BLACK, J.,
joined, and in which WHITE, J., joined in part, post, p. 403 U. S.
27 .

															MR. JUSTICE HARLAN delivered the opinion of the Court.

															This case may seem at first blush too inconsequential to find
its way into our books, but the issue it presents is of no small
constitutional significance. Page 403 U. S. 16 Appellant Paul Robert Cohen was convicted in the Los Angeles
Municipal Court of violating that part of California Penal Code §
415 which prohibits "maliciously and willfully disturb[ing] the
peace or quiet of any neighborhood or person . . . by . . .
offensive conduct. . . ." [ Footnote
1 ] He was given 30 days' imprisonment. The facts upon which his
conviction rests are detailed in the opinion of the Court of Appeal
of California, Second Appellate District, as follows:

															"On April 26, 1968, the defendant was observed in the Los
Angeles County Courthouse in the corridor outside of division 20 of
the municipal court wearing a jacket bearing the words 'Fuck the
Draft' which were plainly visible. There were women and children
present in the corridor. The defendant was arrested. The defendant
testified that he wore the jacket knowing that the words were on
the jacket as a means of informing the public of the depth of his
feelings against the Vietnam War and the draft."

															"The defendant did not engage in, nor threaten to engage in, nor
did anyone as the result of his conduct Page 403 U. S. 17 in fact commit or threaten to commit any act of violence. The
defendant did not make any loud or unusual noise, nor was there any
evidence that he uttered any sound prior to his arrest." 1 Cal. App. 3d
94 , 97-98, 81 Cal. Rptr.
503 , 505 (1969).

															In affirming the conviction, the Court of Appeal held that
"offensive conduct" means "behavior which has a tendency to provoke others to acts of violence or to in turn disturb the
peace," and that the State had proved this element because, on the
facts of this case,

															"[i]t was certainly reasonably foreseeable that such conduct
might cause others to rise up to commit a violent act against the
person of the defendant or attempt to forcibly remove his
jacket."

															1 Cal. App. 3d at 99-100, 81 Cal. Rptr. at 506. The California
Supreme Court declined review by a divided vote. [ Footnote 2 ] We brought the case here,
postponing the consideration of the question of our jurisdiction
over this appeal to a hearing of the case on the merits. 399 U.S.
904. We now reverse.

															The question of our jurisdiction need not detain us long.
Throughout the proceedings below, Cohen consistently Page 403 U. S. 18 claimed that, as construed to apply to the facts of this case,
the statute infringed his rights to freedom of expression
guaranteed by the First and Fourteenth Amendments of the Federal
Constitution. That contention has been rejected by the highest
California state court in which review could be had. Accordingly,
we are fully satisfied that Cohen has properly invoked our
jurisdiction by this appeal. 28 U.S.C. § 1257(2); Dahnke-Walker
Milling Co. v. Bondurant, 257 U. S. 282 (1921). I In order to lay hands on the precise issue which this case
involves, it is useful first to canvass various matters which this
record does not present.

															The conviction quite clearly rests upon the asserted
offensiveness of the words Cohen used to convey his message to the
public. The only "conduct" which the State sought to punish is the
fact of communication. Thus, we deal here with a conviction resting
solely upon "speech," cf. Stromberg v. California, 283 U. S. 359 (1931), not upon any separately identifiable conduct which
allegedly was intended by Cohen to be perceived by others as
expressive of particular views but which, on its face, does not
necessarily convey any message, and hence arguably could be
regulated without effectively repressing Cohen's ability to express
himself. Cf. United States v. O'Brien, 391 U.
S. 367 (1968). Further, the State certainly lacks power
to punish Cohen for the underlying content of the message the
inscription conveyed. At least so long as there is no showing of an
intent to incite disobedience to or disruption of the draft, Cohen
could not, consistently with the First and Fourteenth Amendments,
be punished for asserting the evident position on the inutility or
immorality of the draft his jacket reflected. Yates v. United
States, 354 U. S. 298 (1957). Page 403 U. S. 19 Appellant's conviction, then, rests squarely upon his exercise
of the "freedom of speech" protected from arbitrary governmental
interference by the Constitution, and can be justified, if at all,
only as a valid regulation of the manner in which he exercised that
freedom, not as a permissible prohibition on the substantive
message it conveys. This does not end the inquiry, of course, for
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. In this vein, too, however, we think
it important to note that several issues typically associated with
such problems are not presented here.

															In the first place, Cohen was tried under a statute applicable
throughout the entire State. Any attempt to support this conviction
on the ground that the statute seeks to preserve an appropriately
decorous atmosphere in the courthouse where Cohen was arrested must
fail in the absence of any language in the statute that would have
put appellant on notice that certain kinds of otherwise permissible
speech or conduct would nevertheless, under California law, not be
tolerated in certain places. See Edwards v. South
Carolina, 372 U. S. 229 , 372 U. S.
236 -237, and n. 11 (1963). Cf. Adderley v.
Florida, 385 U. S. 39 (1966). No fair reading of the phrase "offensive conduct" can be
said sufficiently to inform the ordinary person that distinctions
between certain locations are thereby created. [ Footnote 3 ]

															In the second place, as it comes to us, this case cannot be said
to fall within those relatively few categories of Page 403 U. S. 20 instances where prior decisions have established the power of
government to deal more comprehensively with certain forms of
individual expression simply upon a showing that such a form was
employed. This is not, for example, an obscenity case. Whatever
else may be necessary to give rise to the States' broader power to
prohibit obscene expression, such expression must be, in some
significant way, erotic. Roth v. United States, 354 U. S. 476 (1957). It cannot plausibly be maintained that this vulgar allusion
to the Selective Service System would conjure up such psychic
stimulation in anyone likely to be confronted with Cohen's crudely
defaced jacket.

															This Court has also held that the States are free to ban the
simple use, without a demonstration of additional justifying
circumstances, of so-called "fighting words," those personally
abusive epithets which, when addressed to the ordinary citizen,
are, as a matter of common knowledge, inherently likely to provoke
violent reaction. Chaplinsky v. New Hampshire, 315 U. S. 568 (1942). While the four-letter word displayed by Cohen in relation
to the draft is not uncommonly employed in a personally provocative
fashion, in this instance it was clearly not "directed to the
person of the hearer." Cantwell v. Connecticut, 310 U. S. 296 , 310 U. S. 309 (1940). No individual actually or likely to be present could
reasonably have regarded the words on appellant's jacket as a
direct personal insult. Nor do we have here an instance of the
exercise of the State's police power to prevent a speaker from
intentionally provoking a given group to hostile reaction. Cf.
Feiner v. New York, 340 U. S. 315 (1951); Termniello v. Chicago, 337 U. S.
1 (1949). There is, as noted above, no showing that
anyone who saw Cohen was, in fact, violently aroused, or that
appellant intended such a result. Page 403 U. S. 21 Finally, in arguments before this Court, much has been made of
the claim that Cohen's distasteful mode of expression was thrust
upon unwilling or unsuspecting viewers, and that the State might
therefore legitimately act as it did in order to protect the
sensitive from otherwise unavoidable exposure to appellant's crude
form of protest. Of course, the mere presumed presence of unwitting
listeners or viewers does not serve automatically to justify
curtailing all speech capable of giving offense. See, e.g.,
Organization for a Better Austin v. Keefe, 402 U.
S. 415 (1971). While this Court has recognized that
government may properly act in many situations to prohibit
intrusion into the privacy of the home of unwelcome views and ideas
which cannot be totally banned from the public dialogue, e.g.,
Rowan v. Post Office Dept., 397 U. S. 728 (1970), we have at the same time consistently stressed that "we are
often captives' outside the sanctuary of the home and subject
to objectionable speech." Id. at 397 U. S. 738 .
The ability of government, consonant with the Constitution, to shut
off discourse solely to protect others from hearing it is, in other
words, dependent upon a showing that substantial privacy interests
are being invaded in an essentially intolerable manner. Any broader
view of this authority would effectively empower a majority to
silence dissidents simply as a matter of personal
predilections. In this regard, persons confronted with Cohen's jacket were in a
quite different posture than, say, those subjected to the raucous
emissions of sound trucks blaring outside their residences. Those
in the Los Angeles courthouse could effectively avoid further
bombardment of their sensibilities simply by averting their eyes.
And, while it may be that one has a more substantial claim to a
recognizable privacy interest when walking through a courthouse
corridor than, for example, strolling through Central Park, surely
it is nothing like the interest in Page 403 U. S. 22 being free from unwanted expression in the confines of one's own
home. Cf. Keefe, supra. Given the subtlety and complexity
of the factors involved, if Cohen's "speech" was otherwise entitled
to constitutional protection, we do not think the fact that some
unwilling "listeners" in a public building may have been briefly
exposed to it can serve to justify this breach of the peace
conviction where, as here, there was no evidence that persons
powerless to avoid appellant's conduct did in fact, object to it,
and where that portion of the statute upon which Cohen's conviction
rests evinces no concern, either on its face or as construed by the
California courts, with the special plight of the captive auditor,
but, instead, indiscriminately sweeps within its prohibitions all
"offensive conduct" that disturbs "any neighborhood or person." Cf. Edwards v. South Carolina, supra. [ Footnote 4 ] II Against this background, the issue flushed by this case stands
out in bold relief. It is whether California can excise, as
"offensive conduct," one particular scurrilous epithet from the
public discourse, either upon the theory of the court below that
its use is inherently likely to cause violent reaction or upon a
more general assertion that the States, acting as guardians of
public morality, Page 403 U. S. 23 may properly remove this offensive word from the public
vocabulary.

															The rationale of the California court is plainly untenable. At
most, it reflects an "undifferentiated fear or apprehension of
disturbance [which] is not enough to overcome the right to freedom
of expression." Tinker v. Des Moines Indep. Community School
Dist., 393 U. S. 503 , 393 U. S. 508 (1969). We have been shown no evidence that substantial numbers of
citizens are standing ready to strike out physically at whoever may
assault their sensibilities with execrations like that uttered by
Cohen. There may be some persons about with such lawless and
violent proclivities, but that is an insufficient base upon which
to erect, consistently with constitutional values, a governmental
power to force persons who wish to ventilate their dissident views
into avoiding particular forms of expression. The argument amounts
to little more than the self-defeating proposition that, to avoid
physical censorship of one who has not sought to provoke such a
response by a hypothetical coterie of the violent and lawless, the
States may more appropriately effectuate that censorship
themselves. Cf. Ashton v. Kentucky, 384 U.
S. 195 , 384 U. S. 200 (1966); Cox v. Louisiana, 379 U.
S. 536 , 379 U. S.
550 -551 (1965).

															Admittedly, it is not so obvious that the First and Fourteenth
Amendments must be taken to disable the States from punishing
public utterance of this unseemly expletive in order to maintain
what they regard as a suitable level of discourse within the body
politic. [ Footnote 5 ] We Page 403 U. S. 24 think, however, that examination and reflection will reveal the
shortcomings of a contrary viewpoint.

															At the outset, we cannot overemphasize that, in our judgment,
most situations where the State has a justifiable interest in
regulating speech will fall within one or more of the various
established exceptions, discussed above but not applicable here, to
the usual rule that governmental bodies may not prescribe the form
or content of individual expression. Equally important to our
conclusion is the constitutional backdrop against which our
decision must be made. The constitutional right of free expression
is powerful medicine in a society as diverse and populous a ours.
It is designed and intended to remove governmental restraints from
the arena of public discussion, putting the decision as to what
views shall be voiced largely into the hands of each of us, in the
hope that use of such freedom will ultimately produce a more
capable citizenry and more perfect polity and in the belief that no
other approach would comport with the premise of individual dignity
and choice upon which our political system rests. See Whitney
v. California, 274 U. S. 357 , 274 U. S.
375 -377 (1927) (Brandeis, J., concurring).

															To many, the immediate consequence of this freedom may often
appear to be only verbal tumult, discord, and Page 403 U. S. 25 even offensive utterance. These are, however, within established
limits, in truth necessary side effects of the broader enduring
values which the process of open debate permits us to achieve. That
the air may at times seem filled with verbal cacophony is, in this
sense not a sign of weakness but of strength. We cannot lose sight
of the fact that, in what otherwise might seem a trifling and
annoying instance of individual distasteful abuse of a privilege,
these fundamental societal values are truly implicated. That is why
"[w]holly neutral futilities . . . come under the protection of
free speech as fully as do Keats' poems or Donne's sermons," Winters v. New York, 333 U. S. 507 , 333 U. S. 528 (1948) (Frankfurter, J., dissenting), and why, "so long as the
means are peaceful, the communication need not meet standards of
acceptability," Organization for a Better Austin v. Keefe, 402 U. S. 415 , 402 U. S. 419 (1971).

															Against this perception of the constitutional policies involved,
we discern certain more particularized considerations that
peculiarly call for reversal of this conviction. 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.
Yet no readily ascertainable general principle exists for stopping
short of that result were we to affirm the judgment below. 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. Indeed, we think it is largely because governmental
officials cannot make principled distinctions in this area that the
Constitution leaves matters of taste and style so largely to the
individual.

															Additionally, we cannot overlook the fact, because it Page 403 U. S. 26 is well illustrated by the episode involved here, that much
linguistic expression serves a dual communicative function: it
conveys not only ideas capable of relatively precise, detached
explication, but otherwise inexpressible emotions as well. In fact,
words are often chosen as much for their emotive as their cognitive
force. 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, practically
speaking, may often be the more important element of the overall
message sought to be communicated. Indeed, as Mr. Justice
Frankfurter has said,

															"[o]ne of the prerogatives of American citizenship is the right
to criticize public men and measures -- and that means not only
informed and responsible criticism, but the freedom to speak
foolishly and without moderation." Baumgartner v. United States, 322 U.
S. 665 , 322 U. S.
673 -674 (1944).

															Finally, and in the same vein, we cannot indulge the facile
assumption that one can forbid particular words without also
running a substantial risk of suppressing ideas in the process.
Indeed, governments might soon seize upon the censorship of
particular words as a convenient guise for banning the expression
of unpopular views. We have been able, as noted above, to discern
little social benefit that might result from running the risk of
opening the door to such grave results.

															It is, in sum, our judgment that, absent a more particularized
and compelling reason for its actions, the State may not,
consistently with the First and Fourteenth Amendments, make the
simple public display here involved of this 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. Page 403 U. S. 27 [ Footnote 1 ]

															The statute provides in full:

															"Every person who maliciously and willfully disturbs the peace
or quiet of any neighborhood or person, by loud or unusual noise,
or by tumultuous or offensive conduct, or threatening, traducing,
quarreling, challenging to fight, or fighting, or who, on the
public streets of any unincorporated town, or upon the public
highways in such unincorporated town, run any horse race, either
for a wager or for amusement, or fire any gun or pistol in such
unincorporated town, or use any vulgar, profane, or indecent
language within the presence or hearing of women or children, in a
loud and boisterous manner, is guilty of a misdemeanor, and upon
conviction by any Court of competent jurisdiction shall be punished
by fine not exceeding two hundred dollars, or by imprisonment in
the County Jail for not more than ninety days, or by both fine and
imprisonment, or either, at the discretion of the Court."

															[ Footnote 2 ]

															The suggestion has been made that, in light of the supervening
opinion of the California Supreme Court in In re
Bushman, 1 Cal. 3d 767 ,
463 P.2d 727 (1970), it is "not at all certain that the California
Court of Appeal's construction of § 415 is now the authoritative
California construction." Post at 403 U. S. 27 (BLACKMUN, J., dissenting). In the course of the Bushman opinion, Chief Justice Traynor stated:

															"[One] may . . . be guilty of disturbing the peace through
'offensive' conduct [within the meaning of § 415] if, by his
actions, he willfully and maliciously incites others to violence or
engages in conduct likely to incite others to violence. ( People
v. Cohen (1969) 1 Cal. App. 3d
94 , 101, [ 81 Cal. Rptr.
503 ].)"

															1 Cal. 3d at 773, 463 P.2d at 730.

															We perceive no difference of substance between the Bushman construction and that of the Court of Appeal,
particularly in light of the Bushman court's approving
citation of Cohen. [ Footnote 3 ]

															It is illuminating to note what transpired when Cohen entered a
courtroom in the building. He removed his jacket and stood with it
folded over his arm. Meanwhile, a policeman sent the presiding
judge a note suggesting that Cohen be held in contempt of court.
The judge declined to do so, and Cohen was arrested by the officer
only after he emerged from the courtroom. App. 119.

															[ Footnote 4 ]

															In fact, other portions of the same statute do make some such
distinctions. For example, the statute also prohibits disturbing
"the peace or quiet . . . by loud or unusual noise" and using
"vulgar, profane, or indecent language within the presence or
hearing of women or children, in a loud and boisterous manner." See n 1, supra. This second-quoted provision in particular serves
to put the actor on much fairer notice as to what is prohibited. It
also buttresses our view that the "offensive conduct" portion, as
construed and applied in this case, cannot legitimately be
justified in this Court as designed or intended to make fine
distinctions between differently situated recipients.

															[ Footnote 5 ]

															The amicus urges, with some force, that this issue is
not properly before us, since the statute, as construed, punishes
only conduct that might cause others to react violently. However,
because the opinion below appears to erect a virtually irrebuttable
presumption that use of this word will produce such results, the
statute, as thus construed, appears to impose, in effect, a flat
ban on the public utterance of this word. With the case in this
posture, it does not seem inappropriate to inquire whether any
other rationale might properly support this result. While we think
it clear, for the reasons expressed above, that no statute which
merely proscribes "offensive conduct" and has been construed as
broadly as this one was below can subsequently be justified in this
Court as discriminating between conduct that occurs in different
places or that offends only certain persons, it is not so
unreasonable to seek to justify its full broad sweep on an
alternate rationale such as this. Because it is not so patently
clear that acceptance of the justification presently under
consideration would render the statute overbroad or
unconstitutionally vague, and be cause the answer to appellee's
argument seems quite clear, we do not pass on the contention that
this claim is not presented on this record.

															MR. JUSTICE BLACKMUN, with whom THE CHIEF JUSTICE and MR.
JUSTICE BLACK join.

															I dissent, and I do so for two reasons:

															1. Cohen's absurd and immature antic, in my view, was mainly
conduct, and little speech. See Street v. New York, 394 U. S. 576 (1969); Cox v. Louisiana, 379 U.
S. 536 , 379 U. S. 555 (1965); Giboney v. Empire Storage Co., 336 U.
S. 490 , 336 U. S. 502 (1949). The California Court of Appeal appears so to have described
it, 1 Cal. App. 3d
94 , 100, 81 Cal. Rptr.
503 , 507, and I cannot characterize it otherwise. Further, the
case appears to me to be well within the sphere of Chaplinsky
v. New Hampshire, 315 U. S. 568 (1942), where Mr. Justice Murphy, a known champion of First
Amendment freedoms, wrote for a unanimous bench. As a consequence,
this Court's agonizing over First Amendment values seems misplaced
and unnecessary.

															2. I am not at all certain that the California Court of Appeal's
construction of § 415 is now the authoritative California
construction. The Court of Appeal filed its opinion on October 22,
1969. The Supreme Court of California declined review by a
four-to-three vote on December 17. See 1 Cal. App. 3d at
104. A month later, on January 27, 1970, the State Supreme Court,
in another case, construed § 415, evidently for the first time. In re Bushman, 1 Cal. 3d 767 ,
463 P.2d 727. Chief Justice Traynor, who was among the dissenters
to his court's refusal to take Cohen's case, wrote the majority
opinion. He held that § 415 "is not unconstitutionally vague and
overbroad," and further said:

															"[T]hat part of Penal Code section 415 in question here makes
punishable only willful and malicious conduct that is violent and
endangers public safety and order or that creates a clear and
present danger that others will engage in violence of that nature.
" Page 403 U. S. 28 ". . . [It] does not make criminal any nonviolent act unless the
act incites or threatens to incite others to violence. . . ."

															1 Cal. 3d at 773-774, 463 P.2d at 731. Cohen was cited
in Bushman, 1 Cal. 3d at 773, 463 P.2d at 730, but I am
not convinced that its description there and Cohen itself
are completely consistent with the "clear and present danger"
standard enunciated in Bushman. Inasmuch as this Court
does not dismiss this case, it ought to be remanded to the
California Court of Appeal for reconsideration in the light of the
subsequently rendered decision by the State's highest tribunal in Bushman. MR. JUSTICE WHITE concurs in Paragraph 2 of MR. JUSTICE
BLACKMUN's dissenting opinion.

Summary: The Supreme Court ruled in favor of Cohen, arguing that the state could not criminalize the public display of a jacket with the phrase "Fuck the Draft" without violating the First and Fourteenth Amendments. Justice Harlan, delivering the opinion of the Court, acknowledged the case's seemingly trivial nature but emphasized its significant constitutional implications. Cohen's conviction under the California Penal Code for disturbing the peace with offensive conduct was overturned, as his actions did not incite violence or pose a clear and present danger. Justice Blackmun, in dissent, viewed Cohen's actions as primarily conduct rather than speech and believed the case fell within the scope of Chaplinsky v. New Hampshire, upholding similar laws. He also questioned the consistency between the Court of Appeal's interpretation of the law and the subsequent ruling by the California Supreme Court in In re Bushman.