"Appellant's conviction, then, rests squarely upon his exercise of the "freedom of speech" protected from arbitrary governmental interference by the Constitution, and can be justified, if at all, only as a valid regulation of the manner in which he exercised that freedom, not as a permissible prohibition on the substantive message it conveys...."
Appellant was convicted of violating that part of Cal.Penal Code § 415 which prohibits "maliciously and willfully disturb[ing] the peace or quiet of any neighborhood or person . . . by . . . offensive conduct," for wearing a jacket bearing the words "Fuck the Draft" in a corridor of the Los Angeles Courthouse. 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 affirmed the conviction.
Held: 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 of this single four-letter expletive a criminal offense. Pp. 22-26 .
1 Cal.App.3d 94, 81 Cal.Rptr. 503, reversed.
HARLAN, J., delivered the opinion of the Court, in which DOUGLAS, BRENNAN, STEWART, and MARSHALL, JJ., joined.
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," cf. Stromberg v. California, 283 U.S. 359 (1931), not upon any separately
identifiable conduct which allegedly was intended by Cohen to
be perceived by others as expressive of particular views but
which, on its face, does not necessarily convey any message,
and hence arguably could be regulated without effectively repressing
Cohen's ability to express himself. Cf. United States v. O'Brien, 391 U.S. 367 (1968). 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. Yates v. United
States, 354 U.S. 298 (1957). [p*19]
Appellant's conviction, then, rests squarely upon his exercise of the "freedom of speech" protected from arbitrary governmental interference by the Constitution, and can be justified, if at all, only as a valid regulation of the manner in which he exercised that freedom, not as a permissible prohibition on the substantive message it conveys....
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. Because that is the only arguably sustainable
rationale for the conviction here at issue, the judgment below
MR. JUSTICE BLACKMUN, with whom THE CHIEF JUSTICE and MR. JUSTICE
I dissent, and I do so for two reasons:
1. Cohen's absurd and immature antic, in my view, was mainly conduct, and little speech. See Street v. New York, 394 U.S. 576 (1969); Cox v. Louisiana, 379 U.S. 536 , 555 (1965); Giboney v. Empire Storage Co., 336 U.S. 490, 502 (1949). The California Court of Appeal appears so to have described it, 1 Cal.App.3d 94, 100, 81 Cal.Rptr. 503, 507, and I cannot characterize it otherwise. Further, the case appears to me to be well within the sphere of Chaplinsky v. New Hampshire, 315 U.S. 568 (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.
2. I am not at all certain that the California Court of Appeal's construction of § 415 is now the authoritative California construction. The Court of Appeal filed its opinion on October 22, 1969. The Supreme Court of California declined review by a four-to-three vote on December 17. See 1 Cal.App.3d at 104. A month later, on January 27, 1970, the State Supreme Court, in another case, construed § 415, evidently for the first time. In re Bushman, 1 Cal.3d 767, 463 P.2d 727. Chief Justice Traynor, who was among the dissenters to his court's refusal to take Cohen's case, wrote the majority opinion. He held that § 415 "is not unconstitutionally vague and overbroad," and further said:
[T]hat part of Penal Code section 415 in question here makes punishable only willful and malicious conduct that is violent and endangers public safety and order or that creates a clear and present danger that others will engage in violence of that nature. [p*28]
. . . [It] does not make criminal any nonviolent act unless the act incites or threatens to incite others to violence. . . .
1 Cal.3d at 773-774, 463 P.2d at 731. Cohen was cited in Bushman, 1 Cal.3d at 773, 463 P.2d at 730, but I am not convinced that its description there and Cohen itself are completely consistent with the "clear and present danger" standard enunciated in Bushman. Inasmuch as this Court does not dismiss this case, it ought to be remanded to the California Court of Appeal for reconsideration in the light of the subsequently rendered decision by the State's highest tribunal in Bushman.
MR. JUSTICE WHITE concurs in Paragraph 2 of MR. JUSTICE BLACKMUN's dissenting opinion.