Facts
- Paul Robert Cohen entered a public corridor of the Los Angeles County Courthouse wearing a jacket displaying the words “Fuck the Draft.”
- The words were plainly visible; women and children were present in the corridor.
- Cohen wore the jacket to communicate opposition to the Vietnam War and the draft.
- Cohen did not shout, make unusual noise, threaten anyone, or engage in violence; no violence occurred because of the display.
- He was arrested and convicted under Cal. Penal Code § 415 for “offensive conduct” disturbing the peace, based solely on the jacket’s message.
- The California Court of Appeal affirmed, construing “offensive conduct” as behavior tending to provoke violence or disturb the peace; the California Supreme Court denied review.
Issues
- Whether the First and Fourteenth Amendments permit a state to criminalize the public display of a profane political message on clothing in a courthouse corridor as “offensive conduct” disturbing the peace.
- Whether the message fell within any unprotected category of expression, such as obscenity, fighting words, or incitement.
Decision
- The Supreme Court reversed Cohen’s conviction in a 5–4 decision (Justice Harlan).
- The Court treated the prosecution as punishment for expression, not regulable noncommunicative conduct.
- The Court held the message was not obscenity because it was not erotic.
- The Court held the message was not fighting words because it was not a direct, personal insult addressed to a particular person.
- The Court found no showing of incitement or a concrete threat of violence; a generalized fear of disturbance was insufficient.
- The Court rejected the state’s civility and listener-protection rationales where observers could avert their eyes.
Legal Principles
- Government generally may not make the public display of a profane political message a crime absent a specific and compelling justification consistent with the First Amendment.
- The First Amendment protects the emotive force of language as well as its cognitive content; banning particular words risks suppressing ideas.
- Profanity, without more, does not constitute obscenity; obscenity requires a significant erotic component.
- “Fighting words” doctrine is limited to direct personal insults likely to provoke an immediate violent reaction; broad bans on “offensive” expression are constitutionally suspect.
- Mere offensiveness to unwilling viewers in a public place, without targeted harassment or other recognized exception, does not justify criminal punishment.
Conclusion
The Court set aside Cohen’s breach-of-peace conviction, holding that the Constitution forbids criminalizing a profane, political slogan displayed in public when it is not obscene, not a direct personal insult, and not shown to incite or threaten violence.