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27 Comm. Law. 5 (2010-2011)
Cohen v. California Turns 40: F--- the Midlife Crisis

handle is hein.journals/comlaw27 and id is 97 raw text is: Cohen v. California Turns 40:
F--- the Midlife Crisis
CLAY CALVERT

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.'
Looking back forty years to the opening
sentence of the U.S. Supreme Court's
1971 opinion in Cohen v. California,2
one realizes the profoundly prophetic
nature of Justice John Marshall Harlan's
words regarding the significance of the
case and how it shaped today's First
Amendment jurisprudence. Indeed, all
free speech advocates should be glad the
case found its way to the Supreme Court
and has become a staple of constitution-
al law casebooks.
For most of us who studied the case
in law school, we remember it simply as
the Fuck the Draft case, much like the
Supreme Court's 2007 student speech
opinion in Morse v. Frederick,3 which is
better known as the Bong Hits 4 Jesus
case. On the fortieth anniversary of Co-
hen, however, it is useful to dig down a
little deeper, first by looking back at the
case argued by First Amendment and
copyright scholar Melville Nimmer and
then by examining its current influence
on the law and suggesting what it il-
lustrates about the ongoing culture wars
over language fought by the FCC and
interest groups like the Parents Televi-
sion Council against broadcasters ac-
cused of indecency.
For instance, an important but often
forgotten aspect of Cohen is that it was
an extremely narrow victory for free
speech. Although five members of the
Court ruled in favor of nineteen-year-old
Paul Robert Cohen's right, during the tu-
mult of the Vietnam War in April 1968,
Clay Calvert (ccalvert@ou.ufl.edu) is Profes-
sor and Brechner Eminent Scholar in Mass
Communication and Director of the Marion B.
Brechner First Amendment Project at the Uni-
versity of Florida in Gainesville. During the
spring semester of 2011, he is teaching con-
stitutional law at the University of the Pacific
McGeorge School ofLaw in Sacramento.

to wear a denim jacket emblazoned with
peace symbols and the words Fuck the
Draft in the corridor of a Los Angeles
courthouse, four Justices dissented.
Nixon-appointee Harry Blackmun,
who was appointed to the Court a scant
thirteen months before Cohen, authored
a vigorous dissent. He categorized Co-
hen's wearing of the jacket as conduct,
not speech, that constituted little more
than an absurd and immature antic.4
Chief Justice Warren Burger and Justice
Hugo Black joined Blackmun's dissent
in full, while Justice Byron White joined
in part. The majority squarely rejected
Blackmun's efforts to play the speech
conduct dichotomy card, writing that
[t]he only 'conduct' which the State
sought to punish is the fact of commu-
nication. Thus, we deal here with a con-
viction resting solely upon 'speech.'I
But even if it was speech, Justice Black-
mun wrote that Mr. Cohen's expression
would have constituted fighting words,
one of the few traditional categories of
expression falling outside the protective
aegis of the First Amendment.6
Imagine if one of the five Justices in
the majority had switched sides and the
decision had flipped in favor of Califor-
nia? Or, to use a texting acronym that
Paul Robert Cohen might have chosen,
WTF? It certainly would be a lot riskier
today to vehemently criticize a broad
range of government policies, ranging
from health care reform to the war in
Afghanistan. Had the dissent prevailed,
the chilling effect would have been
immense.
Cohen's right to offend on a matter
of public concern laid the groundwork
for the right to personally offend public
figures like Moral Majority leader Jerry
Falwell, as the Supreme Court recog-
nized in its 1988 opinion in Hustler
Magazine v. Falwell.' In March 2011,
an eight-Justice majority stretched the
right to offend to protect the members of
the Westboro Baptist Church when they
protest with anti-gay, anti-military mes-
sages in public places outside of private

funerals in Snyder v. Phelps.'
But Cohen did more than just protect
the right to engage in offensive political
speech in public places in which, as Jus-
tice Harlan wrote, those offended could
effectively avoid further bombardment
of their sensibilities simply by averting
their eyes.9 For example, Cohen 's fre-
quently cited quotation that it is often
true that one man's vulgarity is another's
lyric taps directly into the power and
premise of the void for vagueness doc-
trine that is commonly invoked today as
a facial constitutional challenge to stat-
utes that restrict speech.
When it comes to fighting words,
Cohen made it clear that the fact, stand-
ing alone, that some words offend does
not render them outside the ambit of
First Amendment protection. Cohen im-
plicitly jettisoned the first prong of the
much-criticized fighting words doctrine,
i.e., words that by their utterance inflict
injury,' when it defined fighting words
as personally abusive epithets which,
when addressed to the ordinary citizen,
are, as a matter of common knowledge,
inherently likely to provoke violent re-
action.2 In brief, fighting words today
must be conveyed in direct, one-on-one
fashion and be likely to provoke an im-
mediate, violent response in the context
in which they are uttered.
Perhaps one of the most important as-
pects of Cohen that may be overlooked
today is the Court's emphasis that how
something is said can actually be as im-
portant, if not more so, than what is said.
As Justice Harlan wrote, much linguis-
tic expression serves a dual communica-
tive function: it conveys not only ideas
capable of relatively precise, detached
explication, but otherwise inexpressible
emotions as well. In fact, words are of-
ten chosen as much for their emotive as
their cognitive force.-'
This principle, what might be called
the shock value in First Amendment
jurisprudence, is pivotal today. Indeed,
the Supreme Court would later recog-
nize the shock value of speech in the

March 2011 l Communications Lawyer 0 5

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