v. Cohen California 1970
I. Facts a. A 19-year-old department store worker expressed his opposition to the Vietnam War by wearing a jacket emblazoned with "FUCK THE DRAFT. STOP THE WAR" The young man, Paul Cohen, was charged under a California statute that prohibits "maliciously and willfully disturb[ing] the peace and quiet of any neighborhood or person [by] offensive conduct." Cohen was found guilty and sentenced to 30 days in jail. b. I I. Legal Questions presented a. Did California's statute, prohibiting the display of offensive messages such as "Fuck the Draft," violate freedom of expression as protected by the First Amendment? b. I I I. Answers a. Yes. In an opinion by Justice John Marshall Harlan, the Court reasoned that the expletive, while provocative, was not directed toward anyone; besides, there was no evidence that people in substantial numbers would be provoked into some kind of physical action by the words on his jacket. Harlan recognized that "one man's vulgarity is another's lyric." In doing so, the Court protected two elements of speech: the emotive (the expression of emotion) and the cognitive (the expression of ideas). IV. Reasons (by Ha rlan) a. In the opinion Justice Harlan famously wrote "one man's vulgarity is another's Harlan's lyric."
b. arguments can be constructed in three major points: First, states (California) cannot censor their citizens in order to make a "civil" society. Second, knowing where to draw the line between harmless heightened emotion and vulgarity can be difficult. Thirdly, people bring passion to politics and vulgarity is simply a side effect of a free exchange of ideas--no matter how radical they may be. V. Dissent reasons (Blackmun) a. In a dissenting opinion, Justice Har ry 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. b. The second paragraph of Blackmun's dissent 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 t r ibunal in Bushman." VI. Concur r ing reasons Notes Compare to