Cohen v. California

RESPONDENT: California
LOCATION: Corridors of Los Angeles Superior Court

DECIDED BY: Burger Court (1970-1971)
LOWER COURT: State appellate court

CITATION: 403 US 15 (1971)
ARGUED: Feb 22, 1971
DECIDED: Jun 07, 1971

Facts of the case

A 19-year-old department store worker expressed his opposition to the Vietnam War by wearing a jacket emblazoned with "FUCK THE DRAFT. STOP THE WAR" The young man, Paul Cohen, was charged under a California statute that prohibits "maliciously and willfully disturb[ing] the peace and quiet of any neighborhood or person [by] offensive conduct." Cohen was found guilty and sentenced to 30 days in jail.


Did California's statute, prohibiting the display of offensive messages such as "Fuck the Draft," violate freedom of expression as protected by the First Amendment?

Media for Cohen v. California

Audio Transcription for Oral Argument - February 22, 1971 in Cohen v. California

Warren E. Burger:

We will hear arguments next in Number 299, Cohen against California.

Mr. Nimmer you may proceed whenever you’re ready.

I might suggest to you that as in most cases, the Court’s thoroughly familiar with the factual setting of this case and it will not be necessary for you I’m sure to dwell on the facts.

Melville B. Nimmer:

Thank you Your Honor.

Mr. Chief Justice and may it please the Court.

This case is of course here on appeal from a judgment of the Court of Appeals, State of California upon this Court’s order postponing jurisdiction pending hearing on the merits.

The Chief Justice’s suggestion I certainly will keep very brief this statement of facts, but fundamentally we do have here the appellant charged and convicted of engaging in tumultuous and offensive conduct in violation of the California disturbing the peace statute Penal Code Section 415.

Although there was a reversal upon the first level of appeal, appellant affirmed the superior of court, it was then certified to the Court of Appeals which vacated and affirmed the judgment.

California Supreme Court refused the hearing, four-to-three decision on that.

And of course fundamentally, may it please the Court what this young man did was to walk through a courthouse corridor in Los Angeles county on his way to a courtroom where he had some business.

Harry A. Blackmun:

What was the business?

Melville B. Nimmer:

Mr. Justice Blackmun, he was -- although it’s not on the record the fact is he was called there as a witness in a case which he was not involved in himself.

While walking through that corridor he was wearing a jacket upon which were inscribed the words “Fuck the draft”, also were inscribed the words “Stop war” and several peace symbols.

When he entered the courtroom, he took off his jacket and held it folded.

When he left the courtroom, he was arrested for disturbing the peace, specifically engaging in tumultuous and offensive conduct.

Potter Stewart:

Now, inside the courtroom, you say he took the jacket off, and did he put it in a place where it was prominently on view?

Melville B. Nimmer:

No Mr. Justice Stewart, he held it folded over his arm and it was not on view there.

Furthermore, the policeman who observed him walking through the corridor before he went into the courtroom -- this is in the record, requested the judge in courtroom to hold the young man in contempt.

The judge refused to hold the young man in contempt because there was nothing to be seen in the courtroom.

I shouldn’t say that, I don’t know what he would have done if he did see anything.

But there was nothing to be seen.

And then he left and at that point he was arrested.

Potter Stewart:

So the conviction rests basically upon his wearing it in the courtroom -- in the corridor of the building.

Melville B. Nimmer:

Precisely Mr. Justice Stewart, yes.

Warren E. Burger:

In this respect it’s no different is it from what it would be if he’d been picked up out on the street, in front of the building or in any other public place?

Melville B. Nimmer:

Exactly Mr. Chief Justice, I think that’s the (Voice Overlap) --

Warren E. Burger:

The courthouse atmosphere has nothing to do with it.

Melville B. Nimmer:

I think it is not an issue in this case, yes Your Honor.

Hugo L. Black:

But wouldn’t you think that there are some things people couldn’t do in the courtroom that they could do in other places?

Melville B. Nimmer:

Mr. Justice Black, I would think there are some things that in the courtroom itself, while court is in session would be improper consistent with the First Amendment.