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15-Mar-2020 21:27

At most, it reflects an "undifferentiated fear or apprehension of disturbance [which] is not enough to overcome the right to freedom of expression." 393 U. It is designed and intended to remove governmental restraints from the arena of public discussion, putting the decision as to what views shall 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 premise of individual dignity and choice upon which our political system rests. That the air may at times seem filled with verbal cacophony is, in this sense not a sign of weakness but of strength. How is one to distinguish this from any other offensive word?

We brought the case here, postponing the consideration of the question of our jurisdiction over this appeal to a hearing of the case on the merits. Accordingly, we are fully satisfied that Cohen has properly invoked our jurisdiction by this appeal. The rationale of the California court is plainly untenable. The argument amounts to little more than the self-defeating proposition that, to avoid physical censorship of one who has not sought to provoke such a response by a hypothetical coterie of the violent and lawless, the States may more appropriately effectuate that censorship themselves. The constitutional right of free expression is powerful medicine in a society as diverse and populous a ours. These are, however, within established limits, in truth necessary side effects of the broader enduring values which the process of open debate permits us to achieve. come under the protection of free speech as fully as do Keats' poems or Donne's sermons," 402 U. First, the principle contended for by the State seems inherently boundless.

The question of our jurisdiction need not detain us long. The conviction quite clearly rests upon the asserted offensiveness of the words Cohen used to convey his message to the public. 359 (1931), not upon any separately identifiable conduct which allegedly was intended by Cohen to be perceived by others as expressive of particular views but which, on its face, does not necessarily convey any message, and hence arguably could be regulated without effectively repressing Cohen's ability to express himself. In the second place, as it comes to us, this case cannot be said to fall within those relatively few categories of [p20] instances where prior decisions have established the power of government to deal more comprehensively with certain forms of individual expression simply upon a showing that such a form was employed. Whatever else may be necessary to give rise to the States' broader power to prohibit obscene expression, such expression must be, in some significant way, erotic. And, while it may be that one has a more substantial claim to a recognizable privacy interest when walking through a courthouse corridor than, for example, strolling through Central Park, surely it is nothing like the interest in [p22] being free from unwanted expression in the confines of one's own home. There may be some persons about with such lawless and violent proclivities, but that is an insufficient base upon which to erect, consistently with constitutional values, a governmental power to force persons who wish to ventilate their dissident views into avoiding particular forms of expression. We [p24] think, however, that examination and reflection will reveal the shortcomings of a contrary viewpoint.

At least so long as there is no showing of an intent to incite disobedience to or disruption of the draft, Cohen could not, consistently with the First and Fourteenth Amendments, be punished for asserting the evident position on the inutility or immorality of the draft his jacket reflected. Any attempt to support this conviction on the ground that the statute seeks to preserve an appropriately decorous atmosphere in the courthouse where Cohen was arrested must fail in the absence of any language in the statute that would have put appellant on notice that certain kinds of otherwise permissible speech or conduct would nevertheless, under California law, not be tolerated in certain places. This Court has also held that the States are free to ban the simple use, without a demonstration of additional justifying circumstances, of so-called "fighting words," those personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke violent reaction. Those in the Los Angeles courthouse could effectively avoid further bombardment of their sensibilities simply by averting their eyes. We have been shown no evidence that substantial numbers of citizens are standing ready to strike out physically at whoever may assault their sensibilities with execrations like that uttered by Cohen. Admittedly, it is not so obvious that the First and Fourteenth Amendments must be taken to disable the States from punishing public utterance of this unseemly expletive in order to maintain what they regard as a suitable level of discourse within the body politic.

The judge declined to do so, and Cohen was arrested by the officer only after he emerged from the courtroom. For example, the statute also prohibits disturbing "the peace or quiet . It also buttresses our view that the "offensive conduct" portion, as construed and applied in this case, cannot legitimately be justified in this Court as designed or intended to make fine distinctions between differently situated recipients. Further, the case appears to me to be well within the sphere of 315 U. As a consequence, this Court's agonizing over First Amendment values seems misplaced and unnecessary. I am not at all certain that the California Court of Appeal's construction of § 415 is now the authoritative California construction.

The urges, with some force, that this issue is not properly before us, since the statute, as construed, punishes only conduct that might cause others to react violently. The Court of Appeal filed its opinion on October 22, 1969. [It] does not make criminal any nonviolent act unless the act incites or threatens to incite others to violence.

Further, the State certainly lacks power to punish Cohen for the underlying content of the message the inscription conveyed. 359 (1931), not upon any separately identifiable conduct which allegedly was intended by Cohen to be perceived by others as expressive of particular views but which, on its face, does not necessarily convey any message, and hence arguably could be regulated without effectively repressing Cohen's ability to express himself. In the first place, Cohen was tried under a statute applicable throughout the entire State. It cannot plausibly be maintained 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. In this regard, persons confronted with Cohen's jacket were in a quite different posture than, say, those subjected to the raucous emissions of sound trucks blaring outside their residences.

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The defendant did not engage in, nor threaten to engage in, nor did anyone as the result of his conduct [p17] in fact commit or threaten to commit any act of violence. 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.

While we think it clear, for the reasons expressed above, that no statute which merely proscribes "offensive conduct" and has been construed as broadly as this one was below can subsequently be justified in this Court as discriminating between conduct that occurs in different places or that offends only certain persons, it is not so unreasonable to seek to justify its full broad sweep on an alternate rationale such as this. Cohen's absurd and immature antic, in my view, was mainly conduct, and little speech.



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