On June 7, 1971, the U.S. Supreme handed down its decision in the case of Cohen v California. Though the justice who wrote the majority opinion originally characterized the case as a “peewee”, in fact it set down a fairly conclusive set of principles regarding the protections of free speech guaranteed by the U.S. Constitution.
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“Cohen” was Paul Robert Cohen, who, on April 26, 1968, had come to the Los Angeles Courthouse to testify in an unrelated case. On the jacket Cohen was wearing that day were stenciled peace symbols and the words “Stop the War” and “Fuck the Draft” – references, of course, to the U.S. involvement in the Vietnam War and the Selective Service system then in use.
It was the latter phrase, about the draft, that especially offended a police officer on duty. He asked the judge in the courtroom where Cohen had to appear to cite him for contempt of court. The judge refused, so when Cohen left the courtroom, the policeman arrested him.
Not an opinion, a woman
Cohen was tried and convicted of violating section 415 of the state’s penal code, which prohibited "maliciously and willfully disturb[ing] the peace or quiet of any neighborhood or person [by] offensive conduct," and he was sentenced to 30 days in jail.
Cohen appealed. In an interview last month with David L. Hudson, Jr., of the Newseum Institute, Cohen (who now goes by another, undisclosed surname) explained that it was a woman he’d met at a party the night before who had written the words on his jacket, and that he “wasn’t trying to make a political statement.” He appealed his conviction simply because, he explained, “I didn’t want to spend 30 days in jail.”
Nonetheless, his case was adopted by the American Civil Liberties Union. After a court of appeals upheld his conviction, and the state supreme court refused to hear a further appeal, Cohen, now represented by Melville Nimmer, filed an appeal with the U.S. Supreme Court.
The Jewish Nimmer (1923-1985) was a professor of law at the University of California, Los Angeles. In addition to being author of a standard intellectual-property textbook, he was considered one of the country’s top experts on the First Amendment, the free-speech section of the Constitution.
How to make nine old men squirm
Oral arguments were heard by the Supreme Court in February 1971. What cannot be overemphasized is that 45 years ago, the word “fuck” was not used in public, certainly not in courtrooms, and just considering the case clearly made the nine old men uncomfortable.
As Nimmer was about to begin his argument, Chief Justice Warren Burger noted that the justices were “thoroughly familiar” with the case, so there was no need for him “to dwell on the facts.”
Nimmer disingenuously promised to keep his statement brief, before then stating that, “What this young man did was to walk through a courthouse corridor wearing a jacket on which were inscribed the words, ‘Fuck the Draft.’”
As Bob Woodward and Scott Armstrong explained in their 1979 book “The Brethren,” “Nimmer was convinced that he had to use ‘fuck,’ and not some euphemism, in his oral argument If Nimmer had acquiesced to Burger’s word taboo, he would have conceded that there were places where ‘fuck’ shouldn’t be said, like the sanctified courthouse. The case would have been lost.”
Justice John Marshall Harlan’s opinion, delivered on June 7, stripped away each element of Cohen’s conviction.
A slogan about the draft on a jacket, he wrote, did not incite to violence and could not be considered “fighting words,” in the sense it insulted a specific individual. Nor did it constitute “conduct,” but rather speech, and as speech, it wasn’t “obscene” in the legal sense, in that there was nothing prurient or erotic about the use of the offensive word in this context. And it wasn’t being foisted on a “captive audience”: Anyone who didn’t want to be confronted by the jacket could look in the other direction.
“One man’s vulgarity is another man’s lyric,” wrote Harlan, and the State of California couldn’t decide, certainly not retroactively, to outlaw a single word, crude as it may be, from public discourse.