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1971
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June 7
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1971
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Paul Robert Cohen, Appellant v State of California
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403
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15
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91 S Ct 1780 29 L Ed 2d 284 1971 US LEXIS 32
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Defendant convicted, Los Angeles Municipal Court affirmed, 81 Cal Rptr 503 (Cal CtApp 1969) rehearing denied, Court of Appeal of California, Second Appellate District 11-13-69 review denied, Supreme Court of California, 12-17-69
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Rehearing denied, 404 US 876 (1971)
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'',
403 U.S. 15 (
1971 ) was a
United States Supreme Court case dealing with
Freedom Of Speech .
Paul Robert Cohen, 19, was arrested for wearing a jacket with the words "
Fuck the
Draft " inside the
Los Angeles Courthouse . He was convicted of violating section 415 of the California
Penal Code , which prohibits "
Maliciously and willfully disturb
the Peace or quiet of any neighborhood or person [by offensive conduct."
The conviction was appealed to the state
U.S. Court Of Appeals , which 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.
The Court, by a vote of 5-4 and per Justice
John Marshall Harlan II , overturned the appellate court's ruling. "Absent a more particularized and compelling reason for its actions," it said, "the
State may not, consistently with the
First Amendment and
Fourteenth Amendment , make the simple public display of this single four-letter
Expletive a criminal offense."
In a
Dissent ing opinion, Justice
Harry Blackmun , joined by Burger and Black, suggested that Cohen's wearing of the jacket in the courthouse was not speech but ''conduct'' (an "absurd and immature antic") and therefore not protected by the First Amendment. However, it was pointed out that Cohen took his jacket off while inside the city courtroom and was not held in
Contempt Of Court for its content; rather, he was arrested after he left the room.
The second paragraph of Blackmun's dissent, which White joined, noted that the Supreme Court of California construed section 415 in ''In re Bushman''
1 Cal.3d 767, 83 Cal.Rptr. 375 (
Cal ,
1970 ), which was decided after the Court of Appeal of California's decision in ''Cohen v. California'' and the Supreme Court of California's denial of review. Blackmun wrote that the case "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''."
