Thursday, August 30, 2012

Cohen v. California still has importance today


"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

Today we studied the case of Cohen v. California 403 US 15 (1971).  In 1971 Paul Robert Cohen wore a leather jacket with the words "Fuck the Draft" on the back of it inside the Los Angeles County Courthouse. He was a witness in a case and while he wore the jacket before going into the courtroom, once in, he removed it and folded it over his arm. A police officer had seen the jacket and told the judge the man should be arrested for contempt, the judge dismissed the idea. When Cohen left the courtroom he was arrested by the same officer, charged and eventually convicted of violating section 415 of the California Penal code which prohibited "maliciously and willfully disturbing the peace or quiet of any neighborhood or person by offensive conduct."

Cohen admitted that he wore the jacket intentionally in an effort to convey his deep feelings and thoughts about the Vietnam war and the draft. Cohen was sentenced to thirty days in jail and appealed the sentence but the California Court of Appeal upheld it stating that "offensive conduct" is defined as "behavior which has a tendency to provoke others to acts of violence or to in turn disturb the peace." It went to the State Supreme Court which declined to take the case, and finally ended up in the US Supreme Court.

The justices ruled what the case was not. It was not an obscenity case. For it to be obscene the vulgarity used would have to provoke erotic thoughts. Obviously "Fuck the Draft" doesn't imply anything sexual. Next they ruled out a "fighting words" case. Not only did Cohen not intend for his message to be insulting but no individuals in the courthouse were insulted or provoked into an act of physical violence because of it. 

The key word in this case, where we draw the line, is the word "offensive". Who decides what is and isn't offensive?  The issue at the heart of the case was "whether California can excise, as 'offensive conduct,' one particular scurrilous epithet from the public discourse, either upon the theory ... 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, may properly remove this offensive word from the public vocabulary."

The word "offensive" meets the requirements of the "void for vagueness" doctrine which simply implies that a law is unenforceable if it is too vague for the average person to comprehend. It is impossible for individuals to clearly determine what is and isn't offensive, as this is completely subjective. Expressions such as "Fuck the Draft" may appear vulgar  but the use of the word "Fuck" in the message conveys a very strong emotion and as the court stated, "In fact, words are often chosen as much for their emotive as their cognitive force."  The court recognized that at times the emotive function "may often be more important element of the overall message" than the message itself. Unpopular as Cohen's use of words or the message itself may have been, at that time, it is that kind of speech, that which is unpopular, which must be protected.

The California law was used to subvert unpopular political speech and this case serves as a milestone and an example for us even today when political speech is the target of individuals of all political persuasions who would stop at nothing to see that it is prohibited by any and all legal means. Individuals who want to get a good idea of the lengths the government (be it local, state, or federal) might go to in an effort to silence certain types of speech, should feel good reading this precedent setting first amendment case.

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