Looking Back at Cohen V. California: A 40-Year Retrospective from Inside the Court

Article excerpt

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

In April 1 968, at the height of the Vietnam War, when campuses from Columbia to Berkeley were in upheaval and many cities in America were on fire due to racial discord as well as antiwar sentiment, a young man named Paul Robert Cohen engaged in a comparatively quiet act of protest. Summoned to appear as a witness, Cohen walked through a corridor of the Los Angeles County Courthouse wearing a jacket on which "Fuck the Draft" was written.2 For that act, Cohen was convicted of "maliciously and willfully disturb[ing] the peace or quiet . . . by . . . offensive conduct . . . ."3 Three years later, by a 5-4 vote, the Supreme Court of the United States reversed that conviction and attendant thirty-day jail sentence by issuing an opinion, with which I was intimately involved, that concluded that the California decision could not withstand First Amendment scrutiny.4

Cohen ?. California is now over forty years old.5 In this Article, I revisit and reexamine Cohen. The opinion makes some rather bold pronouncements about freedom of speech and its importance to American society.6 Cohen also sets out a series of almost-hornbook law statements about certain aspects of time, place, and manner speech regulation.7 1 ask whether, with the hindsight of these past decades, Cohen looks today more like an enduring contribution to First Amendment law and theory, a relic or period piece of the early 1970s, or a jurisprudential quixotic sport. I conclude that both parts of Cohen - Part I, with its treatment of time, place and manner regulations, and Part ?, with its analysis of offensive public speech - even from a perspective of forty years, are important parts of a sound and robust First Amendment jurisprudence and deserve continuing attention.

Candor, if not modesty, requires that I state at the outset that my perspective is not (solely) that of a disinterested academic. During the 1970 Term of the Supreme Court, I had the good luck and great privilege to serve as one of Justice Harlan's law clerks. One of my tasks that year was to draft, at his direction, an opinion for the court in Cohen. With two alterations, Justice Harlan filed the opinion as drafted.8

I thought the opinion in Cohen v. California was right when Justice Harlan filed it, continued to believe it was right during the thirty years that I taught constitutional law at several law schools, and still think the opinion achieves a proper outcome and rests on sound reasoning. Thus, I am more certain of my ability to revisit Cohen than I am of my claim to be able to reexamine it; nevertheless, I am going to try to do both and have set forth a series of retrospective criticisms of Cohen in Part IV. A. Finally, in some of the footnotes, I will explain some of the internal deliberations that led the Court to its resolution of the case and Justice Harlan to his filing of this opinion.9 Occasionally, I confront mysteries about certain aspects of the case, mysteries that I think will never be "solved."10

I. "F . . ."

The facts that gave rise to Cohen are quite simple. In one respect, deceptively so. Cohen did wear his jacket, knowing what was written on it.11 He wore that jacket in a courthouse, where, as observed below, "[t]here were women and children present . . . ."12 Cohen was charged under an archaic, catch-all "offensive conduct" statute13 and, at trial, testified that he wore the jacket "as a means of informing the public of the depth of his feelings against the Vietnam War and the draft."14

Readers today probably have a sense, even if only from their history courses, of the depth of divisions within American society over the war in Vietnam, especially during the period - 1968-1971 - between Cohen's arrest and the reversal of his conviction. Americans were not only deeply divided over the conduct of the war, but by this time all were accustomed to, if not necessarily supportive of, vigorous public antiwar protests. …