On This Day: Supreme Court Rules to Protect Written Profanity

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

He was arrested, charged with disturbing the peace, and sentenced to a month in jail.

But the Supreme 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,” the court decided.

In the opinion, the justices agreed that Cohen’s sentiment was vulgar, but “[n]o individual actually or likely to be present could reasonably have regarded the words on appellant’s jacket as a direct personal insult.”

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, according to the First Amendment Center, is the 1942 Chaplinksy v. New Hampshire, in which the Supreme Court defined “fighting words” as those “which by their very utterance inflict injury or tend to incite an immediate breach of the peace.” Fighting words aren’t protected by the constitution, the court said.

Where the words are used matters, too. In 1986, the Supreme Court ruled that school boards “have vast discretion in controlling what type of language can and cannot be spoken on school grounds,” the First Amendment Center wrote. In the case of Bethel School District No. 403 v. Fraser, a student was suspended after using “explicit sexual metaphors” in an assembly.

Universities, it seems, don’t have the same latitude. According to the University of Missouri-Kansas City School of Law, the Supreme Court in Papish v. Board of Curators “held that a university’s decision to expel a student for distributing a paper on campus containing indecent language and offensive cartoons violated the First Amendment.”

Another case, 1978’s FCC v. Pacifica Foundation, involved the broadcast of a George Carlin stand-up comedy routine about profanity. In that case, according to the UMKC law school, 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 law school’s site also links to transcripts of Carlin’s routine and the speech that got the student in trouble in the Bethel case.

The United States, concerned that Vietnam would become a communist country, authorized the Vietnam War in 1964. Congress passed a resolution to start the war relying on intelligence now known to be wrong. By 1968, the year Cohen wore his jacket to the courthouse, the war and draft had become unpopular in the United States. In 1975, the United States withdrew, and South Vietnam forces ultimately surrendered to the communist Vietcong. Millions of Vietnamese people and 50,000 Americans died in the nine-year war. 

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 Supreme Court also told a lower court to think about reinstating a $550,000 fine against CBS after Janet Jackson’s breast was briefly exposed during a Super Bowl halftime show.