No. 299
SUPREME COURT OF THE UNITED STATES
403 U.S. 15; 91 S. Ct. 1780; 1971 U.S. LEXIS 32;
29 L. Ed. 2d 284
February 22, 1971, Argued
June 7, 1971, Decided
APPEAL FROM THE COURT OF APPEAL OF CALIFORNIA,
SECOND APPELLATE DISTRICT.
SYLLABUS: Appellant was convicted of violating that part of Cal.
Penal Code Sec. 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. Held: 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 of
this single four-letter expletive a criminal offense. Pp. 22-26.
COUNSEL: Melville B. Nimmer argued the cause for appellant. With
him on the brief was Laurence R. Sperber.
Michael T. Sauer argued the cause for appellee. With him on
the brief was Roger Arnebergh.
Anthony G. Amsterdam filed a brief for the American Civil
Liberties Union of Northern California as amicus curiae urging
reversal.
Harlan, J., delivered the opinion of the Court, in which Douglas,
Brennan, Stewart, and Marshall, JJ., joined. Blackmun, J., filed
a dissenting opinion, in which Burger, C. J., and Black, J.,
joined, and in which White, J., joined in part, post, p. 27.
MR. JUSTICE HARLAN delivered the opinion of the Court.
This case may seem at first blush too inconsequential to find
its way into our books, but the issue it presents is of no small
constitutional significance.
Appellant Paul Robert Cohen was convicted in the Los Angeles
Municipal Court of violating that part of California Penal Code
Sec. 415 which prohibits "maliciously and willfully disturb[ing]
the peace or quiet of any neighborhood or person . . . by . . .
offensive conduct . . . ." n1 He was given 30 days' imprisonment.
The facts upon which his conviction rests are detailed in the
opinion of the Court of Appeal of California, Second Appellate
District, as follows:
"On April 26, 1968, the defendant was observed in the Los
Angeles County Courthouse in the corridor outside of division
20 of the municipal court wearing a jacket bearing the words 'Fuck
the Draft' which were plainly visible. There were women and
children present in the corridor. The defendant was arrested.
The defendant testified that he wore the jacket knowing that the
words were on the jacket as a means of informing the public of the
depth of his feelings against the Vietnam War and the draft.
"The defendant did not engage in, nor threaten to engage in,
nor did anyone as the result of his conduct in fact commit or
threaten to commit any act of violence. The defendant did not
make any loud or unusual noise, nor was there any evidence that he
uttered any sound prior to his arrest." 1 Cal. App. 3d 94, 97-98,
81 Cal. Rptr. 503, 505 (1969).
In affirming the conviction 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 that the State had proved this element because, on the
facts of this case, "it was certainly reasonably foreseeable that
such conduct might cause others to rise up to commit a violent act
against the person of the defendant or attempt to forceably remove
his jacket." 1 Cal. App. 3d, at 99-100, 81 Cal. Rptr., at 506. The
California Supreme Court declined review by a divided vote. n2 We
brought the case here, postponing the consideration of the
question of our jurisdiction over this appeal to a hearing of the
case on the merits. 399 U.S. 904. We now reverse.
The question of our jurisdiction need not detain us long.
Throughout the proceedings below, Cohen consistently claimed
that, as construed to apply to the facts of this case, the statute
infringed his rights to freedom of expression guaranteed by the
First and Fourteenth Amendments of the Federal Constitution. That
contention has been rejected by the highest California state court
in which review could be had. Accordingly, we are fully satisfied
that Cohen has properly invoked our jurisdiction by this appeal.
28 U. S. C. Sec. 1257 (2); Dahnke-Walker Milling Co. v. Bondurant,
257 U.S. 282 (1921).
I
In order to lay hands on the precise issue which this case
involves, it is useful first to canvass various matters which this
record does not present.
The conviction quite clearly rests upon the asserted
offensiveness of the words Cohen used to convey his message to the
public. The only "conduct" which the State sought to punish is
the fact of communication. Thus, we deal here with a conviction
resting solely upon "speech," cf. Stromberg v. California, 283
U.S. 359 (1931), not upon any separately identifiable conduct
which allegedly was intended by Cohen to be perceived by others as
expressive of particular views but which, on its face, does not
necessarily convey any message and hence arguably could be
regulated without effectively repressing Cohen's ability to
express himself. Cf. United States v. O'Brien, 391 U.S. 367
(1968). Further, the State certainly lacks power to punish Cohen
for the underlying content of the message the inscription
conveyed. At least so long as there is no showing of an intent to
incite disobedience to or disruption of the draft, Cohen could
not, consistently with the First and Fourteenth Amendments, be
punished for asserting the evident position on the inutility or
immorality of the draft his jacket reflected. Yates v. United
States, 354 U.S. 298 (1957).
Appellant's conviction, then, rests squarely upon his exercise
of the "freedom of speech" protected from arbitrary governmental
interference by the Constitution and can be justified, if at all,
only as a valid regulation of the manner in which he exercised
that freedom, not as a permissible prohibition on the substantive
message it conveys. This does not end the inquiry, of course, for
the First and Fourteenth Amendments have never been thought to
give absolute protection to every individual to speak whenever or
wherever he pleases, or to use any form of address in any
circumstances that he chooses. In this vein, too, however, we
think it important to note that several issues typically
associated with such problems are not presented here.
In the first place, Cohen was tried under a statute applicable
throughout the entire State. Any attempt to support this
conviction on the ground that the statute seeks to preserve an
appropriately decorous atmosphere in the courthouse where Cohen
was arrested must fail in the absence of any language in the
statute that would have put appellant on notice that certain kinds
of otherwise permissible speech or conduct would nevertheless,
under California law, not be tolerated in certain places. See
Edwards v. South Carolina, 372 U.S. 229, 236-237, and n. 11
(1963). Cf. Adderley v. Florida, 385 U.S. 39 (1966). No fair
reading of the phrase "offensive conduct" can be said sufficiently
to inform the ordinary person that distinctions between certain
locations are thereby created. n3
In the second place, as it comes to us, this case cannot be
said to fall within those relatively few categories of instances
where prior decisions have established the power of government to
deal more comprehensively with certain forms of individual
expression simply upon a showing that such a form was employed.
This is not, for example, an obscenity case. Whatever else may be
necessary to give rise to the States' broader power to prohibit
obscene expression, such expression must be, in some significant
way, erotic. Roth v. United States, 354 U.S. 476 (1957). It
cannot plausibly be maintained that this vulgar allusion to the
Selective Service System would conjure up such psychic stimulation
in anyone likely to be confronted with Cohen's crudely defaced
jacket.
This Court has also held that the States are free to ban the
simple use, without a demonstration of additional justifying
circumstances, of so-called "fighting words," those personally
abusive epithets which, when addressed to the ordinary citizen,
are, as a matter of common knowledge, inherently likely to provoke
violent reaction. Chaplinsky v. New Hampshire, 315 U.S. 568
(1942). While the four-letter word displayed by Cohen in relation
to the draft is not uncommonly employed in a personally
provocative fashion, in this instance it was clearly not "directed
to the person of the hearer." Cantwell v. Connecticut, 310 U.S.
296, 309 (1940). No individual actually or likely to be present
could reasonably have regarded the words on appellant's jacket as
a direct personal insult. Nor do we have here an instance of the
exercise of the State's police power to prevent a speaker from
intentionally provoking a given group to hostile reaction. Cf.
Feiner v. New York, 340 U.S. 315 (1951); Terminiello v. Chicago,
337 U.S. 1 (1949). There is, as noted above, no showing that
anyone who saw Cohen was in fact violently aroused or that
appellant intended such a result.
Finally, in arguments before this Court much has been made of
the claim that Cohen's distasteful mode of expression was thrust
upon unwilling or unsuspecting viewers, and that the State might
therefore legitimately act as it did in order to protect the
sensitive from otherwise unavoidable exposure to appellant's crude
form of protest. Of course, the mere presumed presence of
unwitting listeners or viewers does not serve automatically to
justify curtailing all speech capable of giving offense. See, e.
g., Organization for a Better Austin v. Keefe, 402 U.S. 415
(1971). While this Court has recognized that government may
properly act in many situations to prohibit intrusion into the
privacy of the home of unwelcome views and ideas which cannot be
totally banned from the public dialogue, e. g., Rowan v. Post
Office Dept., 397 U.S. 728 (1970), we have at the same time
consistently stressed that "we are often 'captives' outside the
sanctuary of the home and subject to objectionable speech." Id.,
at 738. The ability of government, consonant with the
Constitution, to shut off discourse solely to protect others from
hearing it is, in other words, dependent upon a showing that
substantial privacy interests are being invaded in an essentially
intolerable manner. Any broader view of this authority would
effectively empower a majority to silence dissidents simply as a
matter of personal predilections.
In this regard, persons confronted with Cohen's jacket were in
a quite different posture than, say, those subjected to the
raucous emissions of sound trucks blaring outside their
residences. Those in the Los Angeles courthouse could effectively
avoid further bombardment of their sensibilities simply by
averting their eyes. And, while it may be that one has a more
substantial claim to a recognizable privacy interest when walking
through a courthouse corridor than, for example, strolling through
Central Park, surely it is nothing like the interest in being
free from unwanted expression in the confinesof one's own home.
Cf. Keefe, supra. Given the subtlety and complexity of the factors
involved, if Cohen's "speech" was otherwise entitled to
constitutional protection, we do not think the fact that some
unwilling "listeners" in a public building may have been briefly
exposed to it can serve to justify this breach of the peace
conviction where, as here, there was no evidence that persons
powerless to avoid appellant's conduct did in fact object to it,
and where that portion of the statute upon which Cohen's
conviction rests evinces no concern, either on its face or as
construed by the California courts, with the special plight of the
captive auditor, but, instead, indiscriminately sweeps within its
prohibitions all "offensive conduct" that disturbs "any
neighborhood or person." Cf. Edwards v. South Carolina, supra. n4
II
Against this background, the issue flushed by this case
stands out in bold relief. It is whether California can excise,
as "offensive conduct," one particular scurrilous epithet from the
public discourse, either upon the theory of the court below that
its use is inherently likely to cause violent reaction or upon a
more general assertion that the States, acting as guardians of
public morality, may properly remove this offensive word from the
public vocabulary.
The rationale of the California court is plainly untenable. At
most it reflects an "undifferentiated fear or apprehension of
disturbance [which] is not enough to overcome the right to freedom
of expression." Tinker v. Des Moines Indep. Community School
Dist., 393 U.S. 503, 508 (1969). We have been shown no evidence
that substantial numbers of citizens are standing ready to strike
out physically at whoever may assault their sensibilities with
execrations like that uttered by Cohen. There may be some persons
about with such lawless and violent proclivities, but that is an
insufficient base upon which to erect, consistently with
constitutional values, a governmental power to force persons who
wish to ventilate their dissident views into avoiding particular
forms of expression. The argument amounts to little more than the
self-defeating proposition that to avoid physical censorship of
one who has not sought to provoke such a response by a
hypothetical coterie of the violent and lawless, the States may
more appropriately effectuate that censorship themselves. Cf.
Ashton v. Kentucky, 384 U.S. 195, 200 (1966); Cox v. Louisiana,
379 U.S. 536, 550-551 (1965).
Admittedly, it is not so obvious that the First and Fourteenth
Amendments must be taken to disable the States from punishing
public utterance of this unseemly expletive in order to maintain
what they regard as a suitable level of discourse within the body
politic. n5 We think, however, that examination and reflection
will reveal the shortcomings of a contrary viewpoint.
At the outset, we cannot overemphasize that, in our judgment,
most situations where the State has a justifiable interest in
regulating speech will fall within one or more of the various
established exceptions, discussed above but not applicable here,
to the usual rule that governmental bodies may not prescribe the
form or content of individual expression. Equally important to
our conclusion is the constitutional backdrop against which our
decision must be made. The constitutional right of free
expression is powerful medicine in a society as diverse and
populous as ours. It is designed and intended to remove
governmental restraints from the arena of public discussion,
putting the decision as to what views shall be voiced largely into
the hands of each of us, in the hope that use of such freedom will
ultimately produce a more capable citizenry and more perfect
polity and in the belief that no other approach would comport with
the premise of individual dignity and choice upon which our
political system rests. See Whitney v. California, 274 U.S. 357,
375-377 (1927) (Brandeis, J., concurring).
To many, the immediate consequence of this freedom may often
appear to be only verbal tumult, discord, and even offensive
utterance. These are, however, within established limits, in
truth necessary side effects of the broader enduring values which
the process of open debate permits us to achieve. That the air
may at times seem filled with verbal cacophony is, in this sense
not a sign of weakness but of strength. We cannot lose sight of
the fact that, in what otherwise might seem a trifling and
annoying instance of individual distasteful abuse of a privilege,
these fundamental societal values are truly implicated. That is
why "wholly neutral futilities . . . come under the protection of
free speech as fully as do Keats' poems or Donne's sermons,"
Winters v. New York, 333 U.S. 507, 528 (1948) (Frankfurter, J.,
dissenting), and why "so long as the means are peaceful, the
communication need not meet standards of acceptability,"
Organization for a Better Austin v. Keefe, 402 U.S. 415, 419
(1971).
Against this perception of the constitutional policies
involved, we discern certain more particularized considerations
that peculiarly call for reversal of this conviction. First, the
principle contended for by the State seems inherently boundless.
How is one to distinguish this from any other offensive word?
Surely the State has no right to cleanse public debate to the
point where it is grammatically palatable to the most squeamish
among us. Yet no readily ascertainable general principle exists
for stopping short of that result were we to affirm the judgment
below. For, while the particular four-letter word being litigated
here is perhaps more distasteful than most others of its genre, it
is nevertheless often true that one man's vulgarity is another's
lyric. Indeed, we think it is largely because governmental
officials cannot make principled distinctions in this area that
the Constitution leaves matters of taste and style so largely to
the individual.
Additionally, we cannot overlook the fact, because it is well
illustrated by the episode involved here, that much linguistic
expression serves a dual communicative function: it conveys not
only ideas capable of relatively precise, detached explication,
but otherwise inexpressible emotions as well. In fact, words are
often chosen as much for their emotive as their cognitive force.
We cannot sanction the view that the Constitution, while
solicitous of the cognitive content of individual speech, has
little or no regard for that emotive function which, practically
speaking, may often be the more important element of the overall
message sought to be communicated. Indeed, as Mr. Justice
Frankfurter has said, "one of the prerogatives of American
citizenship is the right to criticize public men and measures --
and that means not only informed and responsible criticism but the
freedom to speak foolishly and without moderation." Baumgartner v.
United States, 322 U.S. 665, 673-674 (1944).
Finally, and in the same vein, we cannot indulge the facile
assumption that one can forbid particular words without also
running a substantial risk of suppressing ideas in the process.
Indeed, governments might soon seize upon the censorship of
particular words as a convenient guise for banning the expression
of unpopular views. We have been able, as noted above, to discern
little social benefit that might result from running the risk of
opening the door to such grave results.
It is, in sum, our judgment that, absent a more particularized
and compellingreason 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.
*FOOTNOTES*
n1 The statute provides in full:
"Every person who maliciously and willfully disturbs the peace
or quiet of any neighborhood or person, by loud or unusual noise,
or by tumultuous or offensive conduct, or threatening, traducing,
quarreling, challenging to fight, or fighting, or who, on the
public streets of any unincorporated town, or upon the public
highways in such unincorporated town, run any horse race, either
for a wager or for amusement, or fire any gun or pistol in such
unincorporated town, or use any vulgar, profane, or indecent
language within the presence or hearing of women or children, in a
loud and boisterous manner, is guilty of a misdemeanor, and upon
conviction by any Court of competent jurisdiction shall be
punished by fine not exceeding two hundred dollars, or by
imprisonment in the County Jail for not more than ninety days, or
by both fine and imprisonment, or either, at the discretion of the
Court."
n2 The suggestion has been made that, in light of the
supervening opinion of the California Supreme Court in In re
Bushman, 1 Cal. 3d 767, 463 P. 2d 727 (1970), it is "not at all
certain that the California Court of Appeal's construction of Sec.
415 is now the authoritative California construction." Post, at 27
(BLACKMUN, J., dissenting). In the course of the Bushman opinion,
Chief Justice Traynor stated:
"[One] may . . . be guilty of disturbing the peace through
'offensive' conduct [within the meaning of Sec. 415] if by his
actions he wilfully and maliciously incites others to violence or
engages in conduct likely to incite others to violence. (People
v. Cohen (1969) 1 Cal. App. 3d 94, 101, [81 Cal. Rptr. 503].)" 1
Cal. 3d, at 773, 463 P. 2d, at 730.
We perceive no difference of substance between the Bushman
construction and that of the Court of Appeal, particularly in
light of the Bushman court's approving citation of Cohen.
n3 It is illuminating to note what transpired when Cohen
entered a courtroom in the building. He removed his jacket and
stood with it folded over his arm. Meanwhile, a policeman sent the
presiding judge a note suggesting that Cohen be held in contempt
of court. The judge declined to do so and Cohen was arrested by
the officer only after he emerged from the courtroom. App. 18-19.
n4 In fact, other portions of the same statute do make some
such distinctions. For example, the statute also prohibits
disturbing "the peace or quiet . . . by loud or unusual noise" and
using "vulgar, profane, or indecent language within the presence
or hearing of women or children, in a loud and boisterous manner."
See n. 1, supra. This second-quoted provision in particular
serves to put the actor on much fairer notice as to what is
prohibited. It also buttresses our view that the "offensive
conduct" portion, as construed and applied in this case, cannot
legitimately be justified in this Court as designed or intended to
make fine distinctions between differently situated recipients.
n5 The amicus urges, with some force, that this issue is not
properly before us since the statute, as construed, punishes only
conduct that might cause others to react violently. However,
because the opinion below appears to erect a virtually
irrebuttable presumption that use of this word will produce such
results, the statute as thus construed appears to impose, in
effect, a flat ban on the public utterance of this word. With the
case in this posture, it does not seem inappropriate to inquire
whether any other rationale might properly support this result.
While we think it clear, for the reasons expressed above, that no
statute which merely proscribes "offensive conduct" and has been
construed as broadly as this one was below can subsequently be
justified in this Court as discriminating between conduct that
occurs in different places or that offends only certain persons,
it is not so unreasonable to seek to justify its full broad sweep
on an alternate rationale such as this. Because it is not so
patently clear that acceptance of the justification presently
under consideration would render the statute overbroad or
unconstitutionally vague, and because the answer to appellee's
argument seems quite clear, we do not pass on the contention that
this claim is not presented on this record.
MR. JUSTICE BLACKMUN, with whom THE CHIEF JUSTICE and MR. JUSTICE
BLACK join.
I dissent, and I do so for two reasons:
1. Cohen's absurd and immature antic, in my view, was mainly
conduct and little speech. See Street v. New York, 394 U.S. 576
(1969); Cox v. Louisiana, 379 U.S. 536, 555 (1965); Giboney v.
Empire Storage Co., 336 U.S. 490, 502 (1949). The California Court
of Appeal appears so to have described it, 1 Cal. App. 3d 94, 100,
81 Cal. Rptr. 503, 507, and I cannot characterize it otherwise.
Further, the case appears to me to be well within the sphere of
Chaplinsky v. New Hampshire, 315 U.S. 568 (1942), where Mr.
Justice Murphy, a known champion of First Amendment freedoms,
wrote for a unanimous bench. As a consequence, this Court's
agonizing over First Amendment values seems misplaced and
unnecessary.
2. I am not at all certain that the California Court of
Appeal's construction of Sec. 415 is now the authoritative
California construction. The Court of Appeal filed its opinion on
October 22, 1969. The Supreme Court of California declined review
by a four-to-three vote on December 17. See 1 Cal. App. 3d, at
104. A month later, on January 27, 1970, the State Supreme Court
in another case construed Sec. 415, evidently for the first time.
In re Bushman, 1 Cal. 3d 767, 463 P. 2d 727. Chief Justice
Traynor, who was among the dissenters to his court's refusal to
take Cohen's case, wrote the majority opinion. He held that Sec.
415 "is not unconstitutionally vague and overbroad" and further
said:
"That part of Penal Code section 415 in question here makes
punishable only wilful and malicious conduct that is violent and
endangers public safety and order or that creates a clear and
present danger that others will engage in violence of that nature.
". . . [It] does not make criminal any nonviolent act unless the
actincites or threatens to incite others to violence . . . ." 1
Cal. 3d, at 773-774, 463 P. 2d, at 731.
Cohen was cited in Bushman, 1 Cal. 3d, at 773, 463 P. 2d, at 730,
but I am not convinced that its description there and Cohen itself
are completely consistent with the "clear and present danger"
standard enunciated in Bushman. Inasmuch as this Court does not
dismiss this case, it ought to be remanded to the California Court
of Appeal for reconsideration in the light of the subsequently
rendered decision by the State's highest tribunal in Bushman.
MR. JUSTICE WHITE concurs in Paragraph 2 of MR. JUSTICE
BLACKMUN'S dissenting opinion.