Cohen v. California
Decided on June 7, 1971; 403 US 15


Wearing a jacket with the words "F*** the Draft" in a courthouse, does not amount to offensive conduct, and the conduct is therefore within the protection of the First Amendment.

 

I. ISSUES II. CASE SUMMARY III. AMICI CURIAE IV. DECISION V. WIN OR LOSS?
I. ISSUES:

A. Issues Discussed: Freedom of expression, offensive conduct

B. Legal Question Presented:

Can a state constitutionally prevent the use of certain words on the grounds that the use of such words constitutes "offensive conduct"?

II. CASE SUMMARY:

A. Background:

"Appellant was convicted of violating that part of California Penal Code 415 which prohibits 'maliciously and willfully disturb[ing] the peace or quiet of any neighborhood or person...by...offensive conduct,' for wearing a jacket bearing the words 'Fuck the Draft' in a corridor of the Los Angeles Courthouse.

The Court of Appeal held that 'offensive conduct' means 'behavior which has a tendency to provoke others to acts of violence or to in turn disturb the peace,' and affirmed the conviction."

On appeal, the US Supreme Court reversed the judgment of the Court of Appeal of California, Second Appellate District.

B. Counsel of Record:
ACLU Side
(Petitioner/Appellant)
Opposing Side
(Respondent/Appellee)
Unavailable Unavailable
C. The Arguments:
ACLU Side
(Petitioner/Appellant)
Opposing Side
(Respondent/Appellee)

Unavailable

Unavailable
III. AMICI CURIAE:
ACLU Side
(Petitioner/Appellant)
Opposing Side
(Respondent/Appellee)
Melville B. Nimmer argued the cause for appellant. With him on the brief was Laurence R. Sperber.

Anthony G. Amsterdam filed a brief for the American Civil Liberties Union of Northern California as amicus curiae urging reversal.

Michael T. Sauer argued the cause for appellee. With him on the brief was Roger Arnebergh.


IV. THE SUPREME COURT'S DECISION:

"It is, in sum, our judgment that, absent a more particularized and compelling reason for its actions, the State may not, consistently with the First and Fourteenth Amendments, make the simple public display here involved of this single four-letter expletive a criminal offense. Because that is the only arguably sustainable rationale for the conviction here at issue, the judgment below must be reversed."

The United States Supreme Court reversed the Court of Appeal of California, Second Appellate District judgment.

Justice Vote: 5 Pro vs. 4 Con
  • Harlan, J. Pro (Wrote majority opinion)
  • Douglas, W. Pro (Joined majority opinion)
  • Brennan, W. Pro (Joined majority opinion)
  • Stewart, P. Pro (Joined majority opinion)
  • Marshall, T. Pro (Joined majority opinion)
  • Blackmun, H. Con (Wrote dissenting opinion)
  • Burger, W. Con (Joined dissenting opinion)
  • Black, H. Con (Joined dissenting opinion)
  • White, B. Con (Joined dissenting opinion in part)
V. A WIN OR LOSS FOR THE ACLU?

The ACLU, as amicus curiae, urged reversal of the judgment of the Court of Appeal of California, Second Appellate District; the Supreme Court reversed in a 5-4 vote, giving the ACLU an apparent win.