Cohen v. California
, 403 U.S. 15
(1971) was a United States Supreme Court
case dealing with freedom of speech
. The case was argued by Melville Nimmer
, representing Paul Robert Cohen, and Michael Sauer
, representing California
Background of the case
On April 26, 1968, Paul Robert Cohen, 19, was arrested for wearing a jacket with the words "Fuck
" inside the Los Angeles Courthouse
. Inside the court room he had the jacket folded over his arm, only after exiting the room he put the jacket on and was then arrested. He was convicted of violating section 415 of the California Penal Code
, which prohibited "maliciously
and willfully disturb[ing] the peace
or quiet of any neighborhood or person [by] offensive conduct."
The conviction was upheld by the California Court of Appeal, which held that "offensive conduct" means "behavior which has a tendency to provoke others to acts of violence or to in turn disturb the peace." After the California Supreme Court denied review, the U.S. Supreme Court granted a writ of certiorari.
The Court's decision
The Court, by a vote of 5-4, per Justice John Marshall Harlan II
, overturned the appellate court's ruling. "[A]bsent a more particularized and compelling reason for its actions," it said, "the State
may not, consistently with the First
Amendments, make the simple public display of this single four-letter expletive
a criminal offense."
In the opinion Justice Harlan famously wrote "one man's vulgarity is another's lyric." (That quotation was later criticized by Robert Bork as "moral relativism.")
In a dissenting
opinion, Justice Harry Blackmun
, joined by Burger and Black, suggested that Cohen's wearing of the jacket in the courthouse was not speech but conduct
(an "absurd and immature antic") and therefore not protected by the First Amendment.
The second paragraph of Blackmun's dissent, which White joined, noted that the Supreme Court of California construed section 415 in In re Bushman 1 Cal.3d 767, 83 Cal.Rptr. 375 (Cal, 1970), which was decided after the Court of Appeal of California's decision in Cohen v. California and the Supreme Court of California's denial of review. Blackmun wrote that the case "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."
- Balter-Reitz, Susan J. (2003). Free Speech on Trial: Communication Perspectives on Landmark Supreme Court Decisions. Tuscaloosa, AL: University of Alabama Press.