42 Years Ago

by Thomas L. Libby

On April 26, 1968, Paul Cohen showed up in a Los Angeles courthouse wearing a jacket emblazoned with the message "Fuck the Draft." He was expressing his feelings against the Vietnam War - but he was also found to be violating California Penal Code section 415, which at the time made it illegal to "maliciously and willfully disturb the peace" by offensive conduct. A court of appeal upheld his conviction, ruling that "offensive conduct" referred to behavior that tended to provoke others to acts of violence or to disturb the peace.

In a landmark freedom-of-speech opinion, the U.S. Supreme Court acknowledged the vulgarity of Cohen's message but noted: "Surely the State has no right to cleanse public debate to the point where it is grammatically palatable to the most squeamish among us." (Cohen v. California, 403 U.S. 15, 25 (1971).)

The Court declined to assess the message as obscenity, "fighting words," or incitement to illegal action in its 54 reversal of Cohen's conviction. It held that, absent a more compelling reason, the First and Fourteenth Amendments preclude making the simple public display of an expletive a criminal offense. As Justice John Marshall Harlan II famously stated in his opinion, "One man's vulgarity is another's lyric."

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