Cases referenced in this episode:

• Cohen v. California | Oyez

Transcript:

This is Michele Goodwin, executive producer of Ms. Studios and  Ms. Media. Welcome to our new, limited series, Speaking Freely: a First Amendment Podcast with Stephen Rohde. In this illuminating new series, prominent First Amendment expert, Stephen Rohde, who has litigated and written about freedom of expression for decades, will explore some of the most controversial free speech and free press cases decided by the U.S. Supreme Court. Looking at hot-button issues like hate speech, defamation, incitement, social media, obscenity, flag burning, espionage, and academic freedom. 

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We hope you enjoy these intriguing programs. For a full transcript, links to cases referenced in this episode, and further reading, check out our landing page at MsMagazine.com.And now, here’s your host Stephen Rohde with our episode: The F-word as Political Protest.

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On April 26, 1968, 19-year-old Paul Robert Cohen was observed outside a courtroom at the L.A. County Courthouse wearing a jacket bearing the words “Fuck the Draft. The words were plainly visible. The courts would later note that there were women and children present in the corridor. When Cohen entered a courtroom in the building he removed his jacket and stood with it folded over his arm.

0:01:29

Meanwhile, a policeman sent the presiding judge a note suggesting that Cohen be held in contempt of court. The judge declined to do so, but as Cohen later emerged from the courtroom he was arrested by the same police officer. Cohen was charged with violating the portion of California penal code, section 415, that prohibits “maliciously and willfully disturbing the peace or quiet of any neighborhood or person by offensive conduct.”

0:02:05

At his trial, Cohen testified that he wore the jacket knowing that the words on it were a means of informing the public of the depth of his feelings against the Vietnam War and the draft. Cohen was convicted and sentenced to 30 days in prison. His conviction was affirmed on appeal.

0:02:28

In its ruling, the California Court of Appeal acknowledged that Cohen “did not engage in or threaten to engage in, nor did anyone, as the result of his conduct, in fact, commit or threaten to commit any act of violence,” and he “did not make any loud or unusual noise, nor was there any evidence that he uttered any sound prior to his arrest.”

0:02:58

Nevertheless, the court of appeal held that offensive conduct meant “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 “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 forcibly remove his jacket.”

0:03:34

The California Supreme Court declined to review the court of appeal decision. So, Cohen appealed to the U.S. Supreme Court. By now, he was represented by Mel Nimmer, a prominent lawyer provided by the American Civil Liberties Union. Nimmer was well-known for his treatise on copyright law. He was also an ardent defender of the First Amendment.

0:04:00

And he displayed his passion when he argued the Cohen case before the U.S. Supreme Court on February 22, 1971. The chief justice at the time was Warren Burger, a conservative justice appointed by President Richard Nixon. Burger was also something of a prude. He wanted to make sure no inappropriate language was used in his august court.

0:04:29 

When he called the case of Cohen v. California, he told the lawyers that the court was “thoroughly familiar with the case,” so there was no need to “dwell on the facts.” What he really meant was there was no need for Nimmer to state the words that were on Cohen’s now-famous jacket.

0:04:52

In fact, it has been reported that Justice Burger had previously asked Nimmer not to utter the word “fuck” in the Supreme Court chamber. According to a law clerk for another justice at the time, Burger said that if that word were used it “would be the end of the court.” But apparently, Nimmer felt the case would be lost if he didn’t say the word “fuck” at least once.

0:05:23

He told a reporter that “to not utter it would be conceding that the word was or should be unspeakable.” And so, when it came time to describe why his client had been convicted of a crime, Nimmer ignored the chief justice’s admonition and said that his client had been wearing a jacket bearing the words “fuck the draft,” and he won the case.

0:05:53

On June 7, 1971, in a 5-to-4 decision, the Supreme Court reversed Cohen’s conviction on First Amendment grounds. In his majority opinion, Justice John Marshall Harlan began by remarking that while the “case may seem, at first blush, too inconsequential to find its way into our books, the issue it presents is of no small constitutional significance.”

0:06:29

The majority opinion confirmed that “we deal here with a conviction resting solely upon speech.” Further, “the state certainly lacks power to punish Cohen for the underlying content of the message the inscription conveyed.” Cohen’s conviction, then, had rested squarely upon his exercise of the freedom of speech that is protected from arbitrary government interference by the Constitution.

0:07:02

The court further explained that the limitation of Cohen’s freedom of speech “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 conveyed.” But this did not end the analysis because, as the court stated, “the 1st and 14th Amendments have never been thought to give absolute protection to every individual to speak whenever and wherever he pleases or to use any form of address in any circumstances that he chooses.”

0:07:46

So, the court proceeded to address and reject the other arguments made by the government. First, it answered the argument that the law seeks to preserve “an appropriately decorous atmosphere in the courthouse.” It rejected this claim because the statute did not put Cohen on notice that certain kinds of otherwise permissible speech or conduct would not be tolerated in certain places.

0:08:15

In holding that Cohen was entitled to notice, the court was relying on the fundamental principle, especially in criminal law, that to be charged with a crime one must be on notice that one’s conduct actually violated that statute. Second, while there are certain well-established exceptions to the First Amendment, the court found that this case did not fall within any of them.

0:08:44

As one example, the court said that this is not an obscenity case because obscenity involves some sort of erotic sexual expression. In an amusing statement to emphasize this point, Justice Harlan wrote “it cannot plausibly maintain 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.”

0:09:18

Nor did the case involve fighting words, which is another currently accepted exception to the First Amendment although many question whether it is as viable today as it was in the past. Fighting words are those personally abusive epithets which, when addressed to an ordinary person, are inherently likely to provoke violent reaction.

0:09:43

In this case, the court discreetly referred to the f-word as the four-letter-word displayed by Cohen in relation to the draft, and the court acknowledged that this word is often used in a personally provocative fashion but in this instance it was clearly not “directed to the person of the hearer.” No individual actually or likely to be present could reasonably have regarded the words on Cohen’s jacket as a direct personal insult.

0:10:19

Third, the court had argued that Cohen’s distasteful mode of expression was “thrust upon unwilling or unsuspecting viewers” and the state might therefore legitimately act to protect sensitive people from otherwise unavoidable exposure to Cohen’s crude form of protest.

0:10:42

But the court rejected this concern as well. It stated “the mere presumed presence of unwitting listeners or viewers does not serve automatically to justify curtailing all speech capable of giving offense.” The court has recognized that the government may properly act in many situations to prohibit intrusions into the privacy of the home, of unwelcome views and ideas that cannot be totally banned from public dialogue, but it has consistently stressed that in modern life “we are often captives outside the sanctuary of the home and subject to objectionable speech,” which the law cannot forbid.

0:11:29

This is a fundamental principle we see time and again when courts are confronted with offensive speech. There is no blanket exception to the First Amendment for offensive or objectionable speech. The law is very concerned that people who have power in our society, such as police, prosecutors, judges, and juries, could censor ideas and expression espoused by certain minorities in our society in the name of prohibiting offensive speech.

0:12:05

In this regard, the court provided the following explanation: “persons confronted with Cohen’s jacket were in quite different posture than, say, those subjected to the raucous emissions of sound trucks blaring outside their residency. Those in the Los Angeles Courthouse could effectively avoid further bombardment of their sensibilities simply by averting their eyes.”

0:12:34

Therefore, if Cohen’s speech was otherwise entitled to constitutional protection, the court did 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, whereas here, there was no evidence that persons powerless to avoid appellant’s conduct did, in fact, object to it.”

0:13:03

Clearly, the one police officer’s objection was not sufficient to override Cohen’s First Amendment rights. The court then took the occasion of the Cohen case to elaborate on the modern theory of free speech as follows: “the constitutional right of free expression is powerful medicine in a society as diverse and populous as ours. 

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It is designed and intended to remove government restraints from the arena of public discussion, putting the decision as to what views should 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 premises of individual dignity and choice upon which our political system rests.”

0:14:05

The court added “verbal tumult, discord, and even offensive utterance are 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 society values are truly implicated.”

0:14:55

I cringed when I read the court calling free speech a privilege, but the rest of this statement is very important and it leads to the court’s concern about any attempt to put limitations on words. The protection of free speech is not confined to “Keats’ poems or Dunn’s sermons,” the court explained, “so long as the means are peaceful, the communication need not meet standards of acceptability.”

0:15:29

The following sentence by Justice Harlan is the most quoted in the entire Cohen decision, “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.” And he added, “indeed, we think it is largely because government officials cannot make principled distinctions in this area that the Constitution leaves matters of taste and style so largely to the individual.”

0:16:14

Furthermore, the majority opinion made the following very important point about the nature of language itself. “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.” 

0:16:52

The court refused to “sanction the view that the Constitution, while solicitous of the cognitive content of individual speech, has little or no regard for the 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 man and measures, and that means not only informed and responsible criticism, but the freedom to speak foolishly and without moderation.”

0:17:34

The court’s point is that we will go down a dangerous slippery slope if someone is permitted to oppose government policy by using a bland phrase such as stop the draft, but someone else will go to jail for using the more shocking but powerful phrase “fuck the draft.” 

0:17:54

In that vein, the court noted “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.”

0:18:25

Justice Harry Blackmun wrote a short dissent citing two reasons why he disagreed with the majority. He was joined in his dissent by Chief Justice Burger and Justice Hugo Black. First, Justice Blackmun stated “Cohen’s absurd and immature antic, in my view, was mainly conduct and little speech.” And second, citing an earlier decision, he wrote simply “this court’s agonizing over First Amendment values seems misplaced and unnecessary.”

0:19:07

I think both of those comments by Justice Blackmun trivialize the important issues involved in the Cohen case, and frankly, are highly disrespectful to the other members of the court who made up the majority. In fact, the dissent underscores several of the cogent points the majority makes. 

0:19:26

For him to call Cohen’s conduct a “absurd and immature antic,” is not only simplistic, it ignores the reality that Cohen was protesting the draft during the highly controversial Vietnam War when there was a groundswell of anger and protest against the draft.

0:19:47

And to claim that Cohen’s jacket was “mainly conduct and little speech” is simply false. The entire case was about words written on a jacket. If someone carries a protest sign bearing the words “end the draft,” the sign is words even if the person carrying it is walking. It’s all about the words.

0:20:15

And what an affront to the other justices to belittle their majority opinion by complaining that their “agonizing over First Amendment values seems misplaced and unnecessary.” How can a serious Supreme Court discussion over whether the First Amendment protects a controversial political protest, for which an individual was sentenced to imprisonment, be dismissed as “misplaced and unnecessary.”

0:20:46

If someone facing prison, represented by a prominent attorney, asks the highest court in the land to decide if his constitutional rights have been violated, is that court’s careful review of the case misplaced and unnecessary, or is it instead precisely why we have a Supreme Court, to ensure that no individual is convicted of a crime and sent to prison for exercising his or her First Amendment rights?

0:20:46

Justice Blackmun’s cavalier comments in his dissent prove the majority’s point. He either disagreed with Cohen’s political position or didn’t like Cohen’s choice of words. Either way, he was willing to allow Cohen to be criminally prosecuted over that disagreement. And that is, well, in my opinion, absurd.

0:21:41

Since it was first decided in 1971, the Cohen decision has been cited scores of times. In fact, in 2009, I myself cited it in a federal civil rights case I brought on behalf of a group of musicians who performed on the highly popular Venice Boardwalk in Los Angeles. The main point of the case involved a challenge to an ordinance regulating amplified sound that the city was using in a way, I believe, restricted the free speech rights of the musicians.

0:22:35

But two of my clients, David Saltsburg who performed under the name Zuma Dogg, and Matthew Dowd, frequently appeared at meetings of the Los Angeles City Council to protest against the city ordinance and to complain about how they were being harassed by the police department. Sometimes they used profanity to make their points.

0:22:59

At one city council meeting, for example, Dowd was objecting to how the ordinance was so hopelessly vague and ambiguous that he couldn’t tell what was legal and what was illegal. In exasperation, he finally proclaimed “there’s no guidelines for what that fucking means.” On another occasion, when Zuma Dogg was criticizing the Los Angeles City Attorney, he ended by saying “as Matt Dowd would say, that is fucked up.”

0:23:32

Dowd and Zuma Dogg were both punished for their speech on the grounds they violated the city’s rules of decorum. They were banned from several meetings and barred from addressing the city council for 30 days on any subject whatsoever. On their behalf, I sued the city on various grounds. In challenging the city’s rules of decorum I eagerly cited Cohen v. California.

0:23:59

During the course of the litigation, I made a motion before Federal Judge Dean Pregerson asking him to find, among other things, that the statements my clients had made at the city council meetings were political speech, protected by the First Amendment. In August 2013, Judge Pregerson did just that. He agreed that the statements were political in nature and were relevant to city government.

0:24:25

Echoing what Justice Harlan had written in Cohen, he found that “Zuma Dogg used a profanity as an intensifier in the context of a critique of the city attorney.” In a concluding passage in his decision, Judge Pregerson’s eloquent language was worthy of the finest Supreme Court opinion. He wrote as follows, “in one of the largest cities in the world, it is to be expected that some inhabitants will sometimes use language that does not conform to the conventions of civility and decorum, including offensive language and swear words.

0:25:07

As an elected official, a city council member will be the subject of personal attacks in such language. It is asking much of city council members who have given themselves to public service to tolerate profanities and personal attacks, but that is what is required by the First Amendment. While the city council has a right to keep its meetings on topic and moving forward, it cannot sacrifice political speech to a formula of civility.”

0:25:41

Citing the case of Gathright v. City of Portland, Judge Pregerson went on to state “Dowd and Dogg may be gadfly to those whose views contrary to their own, but First Amendment jurisprudence is clear that the way to oppose offensive speech is by more speech, not censorship, enforced silence, or eviction from legitimately occupied public space,” and Judge Pregerson ended by quoting Plato’s definition of a gadfly, “the city that silences a critic will injure itself as much as it injures the critic, for the gadfly’s task is to stir into life the massive beast of the city, to rouse each and every one of you to persuade and reproach you all day long.”

0:26:40

I was grateful that Paul Robert Cohen had had the courage to protest the Vietnam War and to take his case to the Supreme Court where his First Amendment rights were vindicated. The cases we’re looking at in this podcast often involve ordinary people who find themselves in extraordinary positions of defending fundamental constitutional principles, not just for themselves, but for all of us.

0:27:12

I’m also grateful to lawyers like Mel Nimmer, who took on these cases and fought them all the way to the highest court, and I’m grateful to those justices of the Supreme Court who have sometimes had to weather the ridicule of their colleagues to advance the cause of free speech.

0:27:32

Thank you for listening to Speaking Freely. I want to thank Allison Whelan, my producer, and I want to welcome you back to future episodes of Speaking Freely: a First Amendment Podcast.