- [Narrator] Supreme Court opinions are typically written
in formal, genteel language.
Justices write circumspectly, almost never resorting
to distasteful language, graphic description,
or obscenities.
It can be entertaining to watch a justice
delicately describe the lurid images
in a pornographic movie
when deciding whether the movie is either obscene
or constitutionally protected.
And in Cohen versus California,
it's interesting to see how the justices managed
to avoid uttering the vulgar phrase that got Mr. Cohen
into such trouble.
Instead of telling us what happened in its own words,
the Supreme Court quoted the operative facts
from the decision of the California Court of Appeal.
In 1968, Mr. Cohen was seen
in the Los Angeles County Courthouse,
"wearing a jacket bearing the words,
Fuck the Draft, which were plainly visible."
He was arrested, convicted of disturbing the peace,
and sentenced to 30 days in prison.
The California Court of Appeal upheld his conviction
and the California Supreme Court declined to hear the case.
Cohen then appealed to the United States Supreme Court,
which accepted the case
to consider whether the conviction infringed
on his First Amendment freedom of expression.
Writing for the court,
Justice John Harlan held
that Cohen's conviction was unconstitutional.
Cohen's conviction rested, in large part, on the fact
that women and children could clearly see the message.
In that day and age, the protection of women and children
from such vulgarity was considered
of valued social interest.
But Harlan argued that protection of sensitive persons alone
could not overcome Cohen's right to communicate his message,
even by use of offensive language.
Offended viewers could easily avert their eyes,
if they didn't want to see it.
Harlan considered the recognized exceptions
to constitutionally protected expression
and concluded that
the phrase on Cohen's jacket didn't fit any of them.
It wasn't obscene,
because it didn't have any prurient or erotic component.
It also didn't constitute fighting words,
because, while distasteful,
it wasn't likely to provoke a violent reaction,
nor was it an insult directed toward any particular person.
The court expressly rejected the notion
that the State of California
could justify Cohen's conviction,
based on the state's duty to protect public morals.
The court noted that Cohen didn't engage
in any other offensive speech or conduct.
Moreover, the fact that he displayed the phrase
in a courthouse was also not germane,
since California's disturbing the peace statute
had no special provision for courthouses.
The court argued that, in a society as diverse
and populous as the United States,
the free exchange of ideas,
even offensively expressed ideas,
is a virtue worthy of First Amendment protection.
Allowing the state to prohibit the public display
of one offensive word would open the floodgates
to the state restricting even more language
and, inevitably, to the state prohibiting the expression
of certain ideas.
This, the court said,
was what the First Amendment was intended to prevent.
So, without a more compelling reason
to suppress Cohen's expression,
the state could not prosecute Cohen for the public display
of his message,
even if that message contained an offensive word.
Therefore, the court overturned Cohen's conviction.
Justice Harry Blackmun dissented,
joined by Justice Hugo Black
and Chief Justice Warren Burger.
First, Blackmun argued
that Cohen's display constituted conduct, not speech.
This brought it outside the First Amendment's protections
and, thus, within the state's right to regulate.
Second, a later California Supreme Court decision
cast doubt on whether
the underlying California Court of Appeal decision
still represented good law in California.
Noting this, Blackmun would have remanded the case back
to the California courts for reconsideration.
Justice Byron White joined the second part
of Blackmun's dissent.
Since Cohen, the court has addressed other situations
where people have used suggestive, vulgar,
or offensive language to express themselves,
notably in schools and at military funerals.
For the most part,
the court has continued
to uphold First Amendment protections for those who choose
to express themselves offensively.