Cohen v. California
403 U.S. 15 (1971)

  • Cohen showed up at court wearing a jacket bearing the words “Fuck the Draft.” He was arrested and charged with disturbing the peace.
    • Cohen was quietly protesting the Vietnam War. He didn’t say anything out loud, make a ruckus, or threaten anybody.
    • The California law prohibited “maliciously and willfully disturbing the peace or quiet of any neighborhood or person by offensive conduct.”
  • Cohen was convicted of disturbing the peace and sentenced to 30 days in jail. He appealed.
    • Cohen argued that the California law was an unconstitutional violation of his 1st Amendment right to free speech.
  • The Appellate Court upheld the conviction. Cohen appealed.
    • The Appellate Court found that the jacket constituted “offensive conduct” which they defined as “behavior which has a tendency to provoke others to acts of violence or to in turn disturb the peace.”
  • The US Supreme Court overturned the conviction and found the California law unconstitutional.
    • The US Supreme Court found that it was a violation of the 1st Amendment to make the public display of a single four-letter expletive a criminal offense, without a more specific and compelling reason than a general tendency to disturb the peace.
      • Basically, this is the same test used for all laws that infringe on constitutional rights. Namely, is there a compelling government interest strong enough to justify the infringement?
  • In a dissent it was argued that Cohen’s actions were not ‘speech’ they were ‘conduct’, and ‘conduct’ is not protected by the 1st Amendment.
  • Basically, this case said that profane and indecent language is protected by the 1st Amendment, and people are free to swear as much as they want.
    • At least in certain mediums. This right does not extend to swearing on television.
      • See Federal Communications Commn. v. Pacifica Foundation (438 U.S. 726 (1978)).