9 Unprotected Categories: Fighting Words and Hate Speech

Cohen v. California

While Chaplinksy initially gave state and local governments leeway to prosecute fighting words, the range of what constituted fighting words would narrow over time as the Court’s doctrine became more speech-protective. One problem with this unprotected category was that otherwise protected political speech might be intermixed with profanity or other fighting words. Does the inclusion of profanity mean the entire speech is unprotected? Does the First Amendment thus only protect “polite or respectful” discourse?

Another problem was that despite writing that fighting words should be determined by what ordinary people find offensive, disruption or violence often resulted from the political content of the speech rather than its mode or form. Opponents of the Civil Rights movement, for example, would sometimes use the logic of fighting words doctrine to shut down speech in favor of equal rights which led to hostile resistance from whites. In other words, either as written or as applied, fighting words bans could be overbroad and restrict protected speech.

One approach to limiting fighting words involved applying the logic of illegal incitement cases—only permitting governments to punish speakers when their speech created some clear and present danger. Another and more influential effort was adopted in Cohen v. California, a Vietnam war-era case involving symbolic speech critical of the draft. Cohen dramatically narrowed the scope of the fighting words doctrine in striking down a California law that forbade “maliciously and willfully disturb[ing] the peace and quiet of any neighborhood or person [by] offensive conduct.”

Cohen v. California

315 U.S. 568 (1971)

Facts: Cohen wore a jacket with the words “Fuck the Draft. Stop the War” on its back inside the hallway of a Los Angeles courthouse. He was arrested and convicted under a California law that prohibited “maliciously and willfully disturb[ing] the peace or quiet of any neighborhood or person [by] offensive conduct.” Cohen sued in federal court, arguing that the law and his arrest violated the First Amendment.

Question: Did California’s ordinance violate the First Amendment’s free speech clause?

Vote: Yes, 5-4

For the Court: Justice Harlan

Dissenting opinion: Justice Blackmun

JUSTICE HARLAN delivered the opinion of the Court.

This case may seem at first blush too inconsequential to find its way into our books, but the issue it presents is of no small constitutional significance.

Appellant Paul Robert Cohen was convicted … of violating that part of California Penal Code § 415 which prohibits “maliciously and willfully disturb[ing] the peace or quiet of any neighborhood or person . . . by . . . offensive conduct…” He was given 30 days’ imprisonment. The facts upon which his conviction rests are detailed in the opinion of the Court of Appeal of California, Second Appellate District, as follows:

On April 26, 1968, the defendant was observed in the Los Angeles County Courthouse in the corridor outside of division 20 of the municipal court wearing a jacket bearing the words ‘Fuck the Draft’ which were plainly visible. There were women and children present in the corridor. The defendant was arrested. The defendant testified that he wore the jacket knowing that the words were on the jacket as a means of informing the public of the depth of his feelings against the Vietnam War and the draft.

The defendant did not engage in, nor threaten to engage in, nor did anyone as the result of his conduct in fact commit or threaten to commit any act of violence. The defendant did not make any loud or unusual noise, nor was there any evidence that he uttered any sound prior to his arrest.

In affirming the conviction, the Court of Appeal held that “offensive conduct” means “behavior which has a tendency to provoke others to acts of violence or to in turn disturb the peace,” and that the State had proved this element…

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. We now reverse…

I

In order to lay hands on the precise issue which this case involves, it is useful first to canvass various matters which this record does not present.

The conviction quite clearly rests upon the asserted offensiveness of the words Cohen used to convey his message to the public. The only “conduct” which the State sought to punish is the fact of communication. Thus, we deal here with a conviction resting solely upon “speech,” not upon any separately identifiable conduct… Further, the State certainly lacks power to punish Cohen for the underlying content of the message the inscription conveyed. 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…

In the first place, Cohen was tried under a statute applicable throughout the entire State. 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…

In the second place, as it comes to us, this case cannot be said to fall within those relatively few categories of 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. This is not, for example, an obscenity case. 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…

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. While the four-letter word displayed by Cohen in relation to the draft is not uncommonly employed in a personally provocative fashion, in this instance it was clearly not “directed to the person of the hearer.” No individual actually or likely to be present could reasonably have regarded the words on appellant’s jacket as a direct personal insult…

Finally, in arguments before this Court, much has been made of the claim that Cohen’s distasteful mode of expression was thrust upon unwilling or unsuspecting viewers, and that the State might therefore legitimately act as it did in order to protect the sensitive from otherwise unavoidable exposure to appellant’s crude form of protest… While this Court has recognized that government may properly act in many situations to prohibit intrusion into the privacy of the home of unwelcome views and ideas which cannot be totally banned from the public dialogue, we have at the same time consistently stressed that “we are often captives’ outside the sanctuary of the home and subject to objectionable speech.” The ability of government, consonant with the Constitution, to shut off discourse solely to protect others from hearing it is, in other words, dependent upon a showing that substantial privacy interests are being invaded in an essentially intolerable manner. Any broader view of this authority would effectively empower a majority to silence dissidents simply as a matter of personal predilections…

II

Against this background, the issue flushed by this case stands out in bold relief. It is whether California can excise, as “offensive conduct,” one particular scurrilous epithet from the public discourse, either upon the theory of the court below that its use is inherently likely to cause violent reaction or upon a more general assertion that the States, acting as guardians of public morality, may properly remove this offensive word from the public vocabulary.

The rationale of the California court is plainly untenable. At most, it reflects an “undifferentiated fear or apprehension of disturbance [which] is not enough to overcome the right to freedom of expression.” 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. 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. 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 as ours. 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.

To many, the immediate consequence of this freedom may often appear to be only verbal tumult, discord, and even offensive utterance. 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. That the air may at times seem filled with verbal cacophony is, in this sense not a sign of weakness but of strength. We cannot lose sight of the fact that, in what otherwise might seem a trifling and annoying instance of individual distasteful abuse of a privilege, these fundamental societal values are truly implicated…

Against this perception of the constitutional policies involved, we discern certain more particularized considerations that peculiarly call for reversal of this conviction. First, the principle contended for by the State seems inherently boundless. How is one to distinguish this from any other offensive word? Surely the State has no right to cleanse public debate to the point where it is grammatically palatable to the most squeamish among us. Yet no readily ascertainable general principle exists for stopping short of that result were we to affirm the judgment below. 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. Indeed, we think it is largely because governmental officials cannot make principled distinctions in this area that the Constitution leaves matters of taste and style so largely to the individual.

Additionally, we cannot overlook the fact, because it is well illustrated by the episode involved here, that much linguistic expression serves a dual communicative function: it conveys not only ideas capable of relatively precise, detached explication, but otherwise inexpressible emotions as well. In fact, words are often chosen as much for their emotive as their cognitive force. We cannot sanction the view that the Constitution, while solicitous of the cognitive content of individual speech, has little or no regard for that emotive function which, practically speaking, may often be the more important element of the overall message sought to be communicated…

Finally, and in the same vein, we cannot indulge the facile assumption that one can forbid particular words without also running a substantial risk of suppressing ideas in the process. Indeed, governments might soon seize upon the censorship of particular words as a convenient guise for banning the expression of unpopular views. We have been able, as noted above, to discern little social benefit that might result from running the risk of opening the door to such grave results.

It is, in sum, our judgment that, absent a more particularized and compelling reason for its actions, 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…

JUSTICE BLACKMUN, with whom THE CHIEF JUSTICE and JUSTICE BLACK join.

I dissent…

Cohen’s absurd and immature antic, in my view, was mainly conduct, and little speech. Further, the case appears to me to be well within the sphere of Chaplinsky v. New Hampshire (1942), where Mr. Justice Murphy, a known champion of First Amendment freedoms, wrote for a unanimous bench. As a consequence, this Court’s agonizing over First Amendment values seems misplaced and unnecessary…

Cohen is an extremely important and influential Supreme Court decision on free speech, not only dramatically limiting what can count as fighting words, but also highlighting a number of features that have become important parts of First Amendment doctrine:

First, Cohen suggests that speech that is offensive but not targeted at a particular individual (or perhaps a group of specific individuals) cannot be fighting words.

Second, the Cohen decision states that in a free society, the appropriate response to speech we hate or find offensive is to walk away, avert our eyes, etc., rather than attempt to censor or stop the speaker. Other scholars have described this as a sort of virtue or habit that does not come easily and must be consciously developed.

Third, Cohen introduces the concept of a captive audience, in which an individual can’t—for whatever reason—simply walk away or avoid the offensive speech in question. Justice Harlan implies that while one might be a captive audience in their own home (you can’t be expected to “walk away” from your own home to avoid speech), captive audience scenarios in public will be rare.

Fourth, Cohen popularizes the concept of a heckler’s veto. One danger of the Chaplinksy decision is that it implies that if enough people are willing to commit violence to stop unpopular speech, the police will censor the speaker to avoid further disturbance of the peace. This, Justice Harlan notes, gives the most easily offended or violent listeners the power to “veto” unpopular speech in public by threatening to make a disturbance. Cohen stands for the opposite principle: that the state should protect unpopular speakers from violence rather than rely on the threat of violence to suppress them.

Fifth, Cohen supports the proposition that the state has no business making decisions regarding what speech is “offensive” enough to be censored. In line with the marketplace of ideas, these determinations are instead to be made by private individuals and social judgment. Cohen thus ends governments’ ability to censor profanity in the broad public sphere (though not in specific venues such as courthouses, city council meetings, etc.).

Sixth, Cohen makes clear that not only the content of speech but also its mode deserves First Amendment protection. By stating that speech has both cognitive and emotive aspects, Justice Harlan recognizes that we are often moved by the passion or emotion a speech generates and not simply the ideas it contains. Censoring the latter, he worries, affects speech as a whole.