Cohen v. California

Following is the case brief for Cohen v. California, United States Supreme Court, (1971)

Case summary for Cohen v. California:

  • Robert Cohen was convicted under a state statute, for wearing a shirt which read “fuck the draft.”
  • Cohen challenged his conviction, claiming that the statute violated his First Amendment rights.
  • The lower courts found for the state, holding that Cohen’s actions constituted “offensive conduct” which the state court of appeals held is “behavior which has a tendency to provoke others to acts of violence or to in turn disturb the peace.”
  • The Court held that without a specific and compelling reason for its actions, the state may not make Cohen’s mere public display of a four-letter swearword a criminal offense, without violating the First Amendment.

Cohen v. California Case Brief

Statement of the facts:

Cohen was convicted for violating a state code when he wore a jacket containing the words “fuck the draft” around women and children. The code specifically outlawed maliciously and willfully disturbing the peace or quiet of any neighborhood or person by offensive conduct. Cohen claimed that he wore the jacket to express how he felt about the draft and overall Vietnam War. In response the municipal court found him guilty anyway and he appealed to the court of appeals, claiming the conviction violated his First amendment rights.

Procedural History:

The state court of appeals affirmed the lower court’s judgment. In response, Cohen appealed to the state supreme court, who denied review. He then appealed to the Supreme Court of the United States, who granted certiorari.

Rule of Law or Legal Principle Applied:

A state cannot punish displaying a four letter expletive without violating the First and Fourteenth Amendment without stating a compelling interest.

Issue and Holding:

Is a state statute that forbids disturbing the peace through offensive speech unconstitutional under the First Amendment’s freedom of expression? Yes.


The Court reversed the state court of appeal’s judgment.


The Court pointed out that Cohen’s conviction was not based on any form of conduct and was entirely based upon the offensiveness of his speech.

When considering precedent, this specific case does not fall into a category of recognized unprotected speech like fighting words or obscenity.  The state argues that California law rightfully banned speech, since Cohen’s distasteful mode of expression was forced to be read by unsuspecting viewers. The state also claims that it has a significant interest in protecting sensitive citizens, such as women and children, from Cohen’s crude manner of protest.

The Court rejects these arguments. Presuming present unsuspecting viewers does not automatically justify restricting potentially offensive speech as a whole. Government regulate of discourse may only be used to prevent others from hearing it, if it is established that substantial privacy interests are invaded in an intolerable way.  The Court pointed out that the readers of Cohen’s jacket could easily look away to shield themselves from his message’s offensiveness.

Since the state of California did not show that supposed viewers who were powerless to avoid the speech did object to the speech, the state failed in presenting sufficient evidence in support of Cohen’s breach of the peace conviction.

The Court also held that there exists no compelling reason for California to criminalize the word fuck specifically as opposed to any other possibly offensive words.  The Court stated that in certain circumstances, the word could be protected speech under the First Amendment of the Constitution.

In addition, a blanket prohibition on this word through any governmental regulation, risks suppression of a number of ideas. As a result, overturning Cohen’s conviction for using this particular word in an expressive context must be done.

Concurring or Dissenting opinion:

Dissenting (Blackmun):

Cohen’s display of the word fuck on his jacket was mainly conduct, not speech. Even if the Court found that Cohen’s display was conduct, they should have determined no protection was warranted as the speech constituted “fighting words.”


This court helped expand individual rights to expression under the First Amendment. Absent any specific and compelling government interest, an individual’s freedom of expression cannot be restricted by making a display of a four letter expletive a criminal offense.

Student Resources: