Cohen v. California

403 U.S. 15, 91 S. Ct. 1780 (1971)



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.


Appellee argued that the words “*** the Draft” printed on appellant's jacket was "offensive conduct" that might provoke others to violence against appellant. The appellant was convicted by the trial court for disturbing the peace by offensive conduct. The appellate court sustained the conviction, rejecting appellant’s contention on right to free speech.


Did appellant’s vulgar allusion to the Selective Service System constitute offensive conduct?




The U.S. Supreme Court disagreed, noting that appellant did not engage in any act of violence, or make any loud noises, when he wore the jacket in the municipal courthouse as an expression of his feelings toward the Vietnam War and the draft. A conviction resting solely upon "speech" could be justified under the First and Fourteenth Amendment only for the manner that the freedom was exercised, but not for the content of the message. The Court observed that the statute was not limited to protecting courtroom decorum, nor directed at erotic messages, and the message did not consist of "fighting words," directed at readers of the message. That the message was thrust upon unsuspecting viewers, who were not captive and could avert their eyes, did not entitle appellee to protect the sensitive by curtailing all such speech. Moreover, no evidence demonstrated that anyone was prepared to strike out at whomever assaulted their sensibilities.

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