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On This Day: Supreme Court Rules to Protect Written Profanity

June 07, 2011 05:00 AM
by Emily Coakley
On June 7, 1971, the Supreme Court ruled in Cohen v. California that the First Amendment protected a California man’s right to wear a jacket bearing a profane message.

Draft Protest Arrest Goes to Highest Court

In 1968, Paul Robert Cohen wore a coat with the words “F--- the draft” on it to the Los Angeles County Courthouse “as a means of informing the public of the depth of his feelings against the Vietnam War and the draft,” according to the Supreme Court opinion.

He was arrested and sentenced to a month in jail under a California statute that prohibited “maliciously and willfully disturb[ing] the peace or quiet of any neighborhood or person … by … offensive conduct.”

Cohen appealed the case, which reached the U.S. Supreme Court in 1971. In a 5-4 decision, the court reversed his conviction, and said that Cohen wasn’t trying to incite anyone with his jacket.

“The State may not, consistently with the First and Fourteenth Amendments, make the simple public display here involved of this single four-letter expletive a criminal offense,” wrote John Marshall Harlan in the majority opinion.

The majority reasoned that it is nearly impossible to differentiate offensive and accepted speech. “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,” Harlan wrote.

Lastly, the majority felt that restrictions on words could lead to widespread censorship. “[W]e cannot indulge the facile assumption that one can forbid particular words without also running a substantial risk of suppressing ideas in the process,” wrote Harlan. “Indeed, governments might soon seize upon the censorship of particular words as a convenient guise for banning the expression of unpopular views.”

In the dissenting opinion, Justice Harry Blackmun argued that Cohen’s action was not protected by the First Amendment because it “was mainly conduct and little speech.”

Background: Court rulings on profanity and free speech

People who use profanity aren’t always protected by the Constitution, and Cohen v. California has become part of a group of cases that help sort out when such words are protected and when they aren’t.

One of those cases is Chaplinksy v. New Hampshire (1942), in which the Supreme Court ruled that “fighting words,” defined as those “which by their very utterance inflict injury or tend to incite an immediate breach of the peace,” weren’t protected by the Constitution. In Cohen v. California, the court ruled that Cohen’s message did not constitute “fighting words” because it was not directed toward any person.

Where the words are used matters, too. In the 1986 case Bethel School District No. 403 v. Fraser, the Supreme Court ruled against a student who was suspended after using “explicit sexual metaphors” in an assembly.

The court, explains the First Amendment Center, determined that school boards “have vast discretion in controlling what type of language can and cannot be spoken on school grounds.”

Universities, it seems, don’t have the same latitude. In Papish v. Board of Curators (1973), the Supreme Court ruled that the explusion of a graduate student for circulating a paper with vulgar language and cartoons violated her First Amendment rights.

Another case, 1978’s FCC v. Pacifica Foundation, involved the broadcast of a George Carlin stand-up comedy routine about profanity. In that case, the court said the Federal Communications Commission could limit profanity on the airwaves to late-night hours. The court’s reasoning included “the ability of broadcasts to zap listeners without warning in the privacy of their own living rooms, and the need to protect children from harmful speech,” according to the law school.

The Supreme Court continues to hear cases involving spoken and visual obscenities. In May 2009, the high court ruled that the FCC can punish broadcasters if people use “fleeting expletives” on live television. The court also told a lower court to consider reinstating a $550,000 fine against CBS after Janet Jackson’s breast was briefly exposed during a Super Bowl halftime show.

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