Cohen v. California

403 U.S. 15 (1971)

Quick Summary

Robert Cohen (defendant) faced legal action for wearing a jacket with an anti-draft slogan in a courthouse. The State of California (plaintiff) upheld his conviction, which was based on a statute prohibiting offensive conduct. Cohen appealed, asserting his First Amendment rights.

The United States Supreme Court overturned his conviction, ruling that the expression was protected speech and that the state could not restrict it based on its content. The decision underscored the importance of free speech in American society and its protection under the Constitution.

Facts of the Case

Robert Cohen (defendant) was found guilty by the Los Angeles Municipal Court for his actions which were deemed to have violated a California penal code. The statute in question prohibited conduct considered to be maliciously and willfully disturbing to others. Cohen had worn a jacket with the phrase ‘Fuck the Draft’ visibly emblazoned on it while present in a courthouse corridor, an area where women and children were also present.

Cohen’s choice of attire was part of his protest against the Vietnam War and the draft, but he did not engage in any violent or threatening behavior.

The California Court of Appeal supported the initial conviction, interpreting ‘offensive conduct’ within the statute to include acts that might provoke others to violence or disturb the peace. The Supreme Court of California denied a review of Cohen’s case, leading to an appeal to the United States Supreme Court, which agreed to hear the case.

Procedural Posture and History

  1. Cohen was convicted in the Los Angeles Municipal Court for violating California Penal Code § 415.
  2. The California Court of Appeal affirmed the conviction.
  3. The Supreme Court of California declined to review the case.
  4. Cohen appealed to the United States Supreme Court, which granted certiorari.

I.R.A.C. Format


Whether a state can constitutionally restrict freedom of expression by punishing an individual for wearing a jacket with an offensive slogan in a public place.

Rule of Law

The First and Fourteenth Amendments protect individuals’ rights to freedom of expression from unwarranted governmental interference, and this protection extends to the choice of words used in public discourse.

Reasoning and Analysis

The Supreme Court held that Cohen’s act of wearing a jacket with a controversial message constituted speech protected under the First Amendment. The State’s attempt to categorize this speech as ‘offensive conduct’ was rejected since it solely targeted the expressive act of communication.

Furthermore, the Court found no evidence that Cohen’s message incited violence or that he had any such intention. The Court emphasized that free speech is vital for a robust debate within a diverse society and is a marker of individual dignity and choice. Justice Harlan, delivering the opinion of the Court, argued that one man’s vulgarity might be another’s lyric, suggesting that the government cannot sanitize public discourse to satisfy the most sensitive members of society.

This principle extends to emotive speech which may lack cognitive content but conveys strong emotions, an important aspect of free expression. The potential suppression of ideas was a significant concern, as censorship based on specific words could lead to broader restrictions on unpopular views.


The United States Supreme Court reversed Cohen’s conviction, stating that California cannot prohibit public display of the word in question without more compelling reasons, as it would be inconsistent with constitutional guarantees of free speech.

Dissenting Opinions

Justice Blackmun, joined by Chief Justice Burger and Justice Black, dissented, arguing that Cohen’s actions were more conduct than speech and fell within established exceptions to protected speech. They suggested that the case should be reconsidered in light of a subsequent interpretation of the statute by the California Supreme Court in In re Bushman.

Key Takeaways

  1. The Supreme Court established that individual expression cannot be limited by the government merely because it is considered offensive by some.
  2. The case reaffirmed that emotive speech is as protected under the First Amendment as cognitive speech.
  3. Cohen v. California is a landmark case in defining the extent of free speech protections against governmental censorship.

Relevant FAQs of this case

What factors must be considered when evaluating whether speech is protected by the First Amendment?

The primary considerations include whether the speech is intended to and likely to incite imminent lawless action, whether it is obscenity without social value, or whether it falls into a few other narrowly defined categories like true threats or defamation. The content and context of the speech, as well as the speaker’s intent, are also critical in this evaluation.

  • For example: A protestor’s sign displaying a political message in front of a government building would likely be protected speech, while a person yelling fire in a crowded theater causing panic would not.

How does the context in which speech occurs affect its protection under the First Amendment?

The location and setting of speech (known as the ‘forum’), the audience, and local laws that might apply all contribute to how speech is protected. Speech in public forums such as streets and parks has strong protections, whereas private property or highly regulated environments like airports may impose reasonable restrictions.

  • For example: Wearing a controversial slogan on a t-shirt may be protected in a public park but could be restricted in a private shopping mall with its own rules of conduct.

Under what circumstances can the government lawfully restrict speech based on its content?

Governmental restrictions are permitted when the speech is classified under exceptions such as obscenity, incitement to violence, defamation, or when it violates another individual’s legal rights. Such restrictions must also pass strict scrutiny by proving a compelling state interest and being narrowly tailored to achieve that interest.

  • For example: A school can legally prohibit students from wearing clothing with messages that might disrupt the learning environment, like racist slogans.


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