Fergie's Tech Blog

7 June 1971: Vulgar Writing is Protected Under the First Amendment

The Supreme Court overturns the conviction of Paul Cohen for disturbing the peace. Cohen, who wore a jacket that read "Fuck the Draft" as he entered into a courtroom on April 26, 1968, had been charged with violating a California law that made it illegal to "use any vulgar, profane, or indecent language within the presence or hearing of women or children, in a loud and boisterous manner."

Cohen actually took off the jacket and folded it over his arm once inside the courthouse. However, a police officer in the building had seen it and sent the presiding judge a note suggesting that Cohen be held in contempt of court. When the judge declined, the officer arrested Cohen as he left the courtroom.

Cohen was convicted and sentenced to 30 days in jail. He described the jacket as his way of informing the public of the depth of his feelings against the Vietnam War and the draft. On appeal, and by a narrow vote of 5-4, the Supreme Court held that Cohen's jacket was protected by the First Amendment, despite the argument that it was so inflammatory that it "was certainly reasonably foreseeable that such conduct might cause others to rise up to commit a violent act against [Cohen] or attempt to forcibly remove his jacket."

The majority of the justices rejected this notion. They noted that when people go out in public they will occasionally see and hear things that they don't like. Justice Hugo Black, usually a stalwart defender of the First Amendment, was one of the dissenting judges, claiming that Cohen's act of wearing the jacket wasn't speech at all, but conduct that could be punished. However, according to the final decision, "those in the Los Angeles courthouse could effectively avoid further bombardment of their sensibilities simply by averting their eyes."

posted by Fergie @ 6/06/2006 10:01:00 PM