WEBVTT 00:00:00.000 --> 00:00:01.700 I want you to start today by thinking about boundaries. 00:00:02.500 --> 00:00:05.280 Like, imagine you are walking through a government 00:00:05.280 --> 00:00:07.400 building. Right. Just minding your own business. 00:00:07.980 --> 00:00:11.839 Maybe you're there to pay a parking ticket or 00:00:11.839 --> 00:00:14.179 testify as a witness or something. And you are 00:00:14.179 --> 00:00:16.559 wearing a jacket. Okay. It's a bit ratty, sure, 00:00:16.719 --> 00:00:18.960 but it's just clothes. But written on the back 00:00:18.960 --> 00:00:22.079 of this jacket is a four -letter word. A word 00:00:22.079 --> 00:00:24.160 that even today you probably wouldn't shout out 00:00:24.160 --> 00:00:26.399 in a church or, you know, kindergarten class. 00:00:26.719 --> 00:00:29.239 And you definitely would have in 1968. Right. 00:00:29.320 --> 00:00:32.799 Definitely not then. So a police officer sees 00:00:32.799 --> 00:00:36.740 you. He follows you down the hall. And eventually 00:00:36.740 --> 00:00:39.079 you end up in handcuffs. You get sentenced to 00:00:39.079 --> 00:00:42.259 30 days in actual jail. Wow. Yeah. You didn't 00:00:42.259 --> 00:00:44.799 punch anyone. You didn't break a window. You 00:00:44.799 --> 00:00:47.359 didn't even yell. You just wore a jacket. Does 00:00:47.359 --> 00:00:48.799 that sound like something that could happen in 00:00:48.799 --> 00:00:51.359 the United States? I mean, it sounds like fiction 00:00:51.359 --> 00:00:54.920 or maybe some dystopian novel about a totalitarian 00:00:54.920 --> 00:00:59.439 state, but it is 100 % real. It feels completely 00:00:59.439 --> 00:01:01.820 wild to me that you could lose a month of your 00:01:01.820 --> 00:01:05.200 liberty over an outfit choice. But that is exactly 00:01:05.200 --> 00:01:07.840 the story we are digging into today. For this 00:01:07.840 --> 00:01:10.480 deep dive, we are looking at Cohen v. California. 00:01:11.079 --> 00:01:14.920 It's a Supreme Court case from 1971 and... Honestly, 00:01:15.060 --> 00:01:17.459 looking at the source materials we have, this 00:01:17.459 --> 00:01:19.359 might be one of the most important cases that 00:01:19.359 --> 00:01:21.540 people have never even heard of. I would completely 00:01:21.540 --> 00:01:24.099 agree with that. It's a massive cornerstone case. 00:01:24.359 --> 00:01:26.319 Because on the surface, sure, it looks like a 00:01:26.319 --> 00:01:29.000 case about a rude teenager. But when you peel 00:01:29.000 --> 00:01:31.340 back the layers, it's really about the government's 00:01:31.340 --> 00:01:34.200 power to cleanse public discourse. Cleanse it. 00:01:34.299 --> 00:01:36.540 Right. It asks this really fundamental question. 00:01:37.000 --> 00:01:39.640 Can the state force you to be polite? And if 00:01:39.640 --> 00:01:41.319 they can force you to be polite, what else can 00:01:41.319 --> 00:01:43.920 they force you to be? Exactly. And that is really 00:01:43.920 --> 00:01:46.219 the mission for our Deep Drive today. We need 00:01:46.219 --> 00:01:49.599 to unpack how a single jacket worn by a 19 -year 00:01:49.599 --> 00:01:52.459 -old department store worker ended up establishing 00:01:52.459 --> 00:01:55.500 the legal principle that, and this is a famous 00:01:55.500 --> 00:01:58.239 quote, one man's vulgarity is another's lyric. 00:01:58.480 --> 00:02:01.219 I've heard that quote before, actually, but I 00:02:01.219 --> 00:02:03.180 had no idea it came from a Supreme Court justice 00:02:03.180 --> 00:02:06.260 talking about the F word. It really did. But 00:02:06.260 --> 00:02:07.659 before we get to the high court and all that 00:02:07.659 --> 00:02:10.120 legal philosophy, we have to go back to the street 00:02:10.120 --> 00:02:13.379 level. Set the scene for us. It's April 1968. 00:02:13.879 --> 00:02:17.080 Yeah, context is everything here. 1968 was an 00:02:17.080 --> 00:02:19.240 absolute pressure cooker. You have the Vietnam 00:02:19.240 --> 00:02:23.139 War raging, and it is incredibly unpopular. You 00:02:23.139 --> 00:02:26.039 have the draft, which is actively pulling young 00:02:26.039 --> 00:02:28.080 men out of their lives and sending them into 00:02:28.080 --> 00:02:30.219 a jungle halfway across the world. Right, people 00:02:30.219 --> 00:02:32.780 were terrified. Terrified and angry. The country 00:02:32.780 --> 00:02:35.120 is completely divided. It's loud. The protests 00:02:35.120 --> 00:02:37.240 are massive. And right in the middle of this, 00:02:37.300 --> 00:02:39.479 we have our defendant, Paul Robert Cohen. He's 00:02:39.479 --> 00:02:42.719 19. and he heads into the Los Angeles Hall of 00:02:42.719 --> 00:02:45.740 Justice. Now, when I first read this, I assumed 00:02:45.740 --> 00:02:47.759 he was there to protest, like he was going to 00:02:47.759 --> 00:02:49.680 hold a sign and shout at a judge or something. 00:02:49.800 --> 00:02:51.360 That's what most people think, but that's the 00:02:51.360 --> 00:02:53.560 irony of this whole case. He wasn't there to 00:02:53.560 --> 00:02:55.879 stage a demonstration at all. He wasn't. No, 00:02:55.900 --> 00:02:58.139 he was actually there to testify as a defense 00:02:58.139 --> 00:03:01.219 witness in a completely unrelated hearing. But 00:03:01.219 --> 00:03:03.900 he was wearing this jacket, and on the back, 00:03:03.960 --> 00:03:06.979 handwritten in marker, were the words, Fuck the 00:03:06.979 --> 00:03:09.840 draft. Okay, so he's walking into a courthouse, 00:03:09.900 --> 00:03:12.159 literally a place of law and order wearing that. 00:03:12.300 --> 00:03:14.080 Did he just walk right up to the judge wearing 00:03:14.080 --> 00:03:17.800 it? Because I feel like any judge in 1968 would 00:03:17.800 --> 00:03:20.520 throw you out immediately or hold you in contempt. 00:03:20.860 --> 00:03:23.560 And that is a really crucial detail in the sources. 00:03:23.879 --> 00:03:26.819 He didn't. The record shows that Coleman actually 00:03:26.819 --> 00:03:29.000 removed the jacket when he entered the courtroom 00:03:29.000 --> 00:03:31.340 itself. Oh, he took it off? Yeah, he took it 00:03:31.340 --> 00:03:34.039 off. He held it. folded over his arm or put it 00:03:34.039 --> 00:03:36.819 down on a bench. He actually seemed to understand 00:03:36.819 --> 00:03:38.840 that the courtroom itself had specific rules 00:03:38.840 --> 00:03:41.439 of decorum. Okay, so the offense, the actual 00:03:41.439 --> 00:03:43.819 crime, didn't even happen in front of a judge. 00:03:43.960 --> 00:03:46.280 It happened out in the hallway. Correct. He was 00:03:46.280 --> 00:03:48.360 just walking through the corridor. There were 00:03:48.360 --> 00:03:50.520 men, women, and children present in the hall. 00:03:51.080 --> 00:03:54.439 And a police officer saw the jacket. But the 00:03:54.439 --> 00:03:57.319 officer didn't ask Cohen to take it off. He didn't 00:03:57.319 --> 00:03:59.280 ask him to leave the building. He just went straight 00:03:59.280 --> 00:04:01.189 to the judge? Right. He went to the presiding 00:04:01.189 --> 00:04:03.330 judge and asked to hold Cohen in contempt of 00:04:03.330 --> 00:04:05.389 court. Because of the hallway. Did the judge 00:04:05.389 --> 00:04:07.509 agree? The judge actually took no action. He 00:04:07.509 --> 00:04:10.669 basically ignored it. So the officer just waits. 00:04:11.110 --> 00:04:13.310 He waits until Cohen leaves the courtroom and 00:04:13.310 --> 00:04:15.289 goes back out into the public corridor. And that 00:04:15.289 --> 00:04:17.189 is when the officer arrests him. This is the 00:04:17.189 --> 00:04:19.509 part I'm kind of stuck on. What is the actual 00:04:19.509 --> 00:04:22.389 charge here? Because I didn't think having a 00:04:22.389 --> 00:04:25.509 potty mouth was a literal crime in the penal 00:04:25.509 --> 00:04:28.009 code. They charged him under California Penal 00:04:28.009 --> 00:04:31.470 Code Section 415. Which is? The specific charge 00:04:31.470 --> 00:04:34.129 was disturbing the peace by engaging in tumultuous 00:04:34.129 --> 00:04:36.750 or offensive conduct. Offensive conduct? Yeah. 00:04:36.829 --> 00:04:39.689 That seems incredibly broad. I mean, I find people 00:04:39.689 --> 00:04:42.009 who chew with their mouth open offensive, but 00:04:42.009 --> 00:04:43.750 I can't have them arrested in a hallway. And 00:04:43.750 --> 00:04:45.709 that right there is the hook the prosecution 00:04:45.709 --> 00:04:49.029 hung their entire hat on. They argued that offensive 00:04:49.029 --> 00:04:51.610 conduct legally means behavior that has a tendency 00:04:51.610 --> 00:04:54.209 to provoke violence. Wait, provoke violence? 00:04:54.410 --> 00:04:57.089 Yeah. Their argument was essentially someone 00:04:57.089 --> 00:04:59.779 might see that jacket. get offended, get really 00:04:59.779 --> 00:05:02.480 angry, and punch you. Therefore, you wearing 00:05:02.480 --> 00:05:05.019 the jacket is disturbing the peace. So it's like 00:05:05.019 --> 00:05:07.689 a preemptive arrest. you're going to jail because 00:05:07.689 --> 00:05:09.990 someone else might lose their temper at you that 00:05:09.990 --> 00:05:12.470 was exactly the logic and it worked at the trial 00:05:12.470 --> 00:05:15.430 level cohen was convicted and he was sentenced 00:05:15.430 --> 00:05:18.970 to 30 days in jail 30 days 30 days he appealed 00:05:18.970 --> 00:05:21.670 obviously but the california courts were not 00:05:21.670 --> 00:05:24.110 having it at all the court of appeal upheld the 00:05:24.110 --> 00:05:26.930 conviction they explicitly said cohen carefully 00:05:26.930 --> 00:05:30.449 chose the forum for shock value meaning he wore 00:05:30.449 --> 00:05:33.970 to a courthouse on purpose exactly and they said 00:05:33.970 --> 00:05:36.949 his words were below the minimum standard of 00:05:36.949 --> 00:05:39.069 propriety minimum standard of propriety that 00:05:39.069 --> 00:05:40.949 sounds like something a victorian headmaster 00:05:40.949 --> 00:05:44.230 would say but playing devil's advocate for a 00:05:44.230 --> 00:05:47.089 second here it is a courthouse sure don't we 00:05:47.089 --> 00:05:49.670 want courthouses to be dignified places like 00:05:49.670 --> 00:05:51.970 if everyone walked around with profanity on their 00:05:51.970 --> 00:05:53.689 shirts wouldn't that actually be a problem for 00:05:53.689 --> 00:05:55.889 running a legal system that is a very fair point 00:05:55.889 --> 00:05:58.269 and it's exactly what the state of california 00:05:58.269 --> 00:06:01.129 argued on appeal they claimed they had a right 00:06:01.500 --> 00:06:03.920 And really a duty to maintain public order and 00:06:03.920 --> 00:06:06.959 decency. They were very careful to say we aren't 00:06:06.959 --> 00:06:09.060 banning his opinion on the draft. They just didn't 00:06:09.060 --> 00:06:11.540 like how he said it. Right. They were banning 00:06:11.540 --> 00:06:13.680 the way he expressed it. They basically said, 00:06:13.779 --> 00:06:16.639 you can say I hate the draft all you want, but 00:06:16.639 --> 00:06:19.600 you cannot use that specific four letter word 00:06:19.600 --> 00:06:21.740 to do it. It feels like a distinction without 00:06:21.740 --> 00:06:23.620 a difference, though. If you tell me I can be 00:06:23.620 --> 00:06:25.879 angry, but I can't sound angry, you're kind of 00:06:25.879 --> 00:06:28.800 policing my message. But obviously the California 00:06:28.800 --> 00:06:31.819 courts disagreed with me. So. Cohen is facing 00:06:31.819 --> 00:06:34.019 jail time. Does he just give up at that point? 00:06:34.139 --> 00:06:36.220 No, he keeps fighting. The California Supreme 00:06:36.220 --> 00:06:38.920 Court actually refused to even hear the case, 00:06:39.060 --> 00:06:41.079 which usually means the end of the road for a 00:06:41.079 --> 00:06:44.500 defendant. But then in 1970, the U .S. Supreme 00:06:44.500 --> 00:06:47.500 Court granted a writ of certiorari. Meaning they 00:06:47.500 --> 00:06:49.100 agreed to take the case. They agreed to review 00:06:49.100 --> 00:06:51.959 it. Yes. OK, so now we are in Washington, D .C., 00:06:51.959 --> 00:06:54.379 the highest court in the land. The stakes are 00:06:54.379 --> 00:06:57.220 huge. And this leads to what the source notes 00:06:57.220 --> 00:06:59.769 call the Nimmer moment. It sounds like a movie 00:06:59.769 --> 00:07:02.550 scene. What happened there? It really is cinematic. 00:07:02.670 --> 00:07:05.990 So Cohen's lawyer is a man named Melville Nimmer. 00:07:06.290 --> 00:07:08.850 He's standing before the Burger Court. Now, Chief 00:07:08.850 --> 00:07:10.910 Justice Warren Burger was very conservative, 00:07:11.050 --> 00:07:14.490 very focused on tradition and decorum. He opens 00:07:14.490 --> 00:07:16.889 the session and he looks down at Nimmer from 00:07:16.889 --> 00:07:19.550 the bench and says, essentially, Mr. Nimmer, 00:07:19.730 --> 00:07:23.189 you don't need to dwell on the facts. Wait, don't 00:07:23.189 --> 00:07:25.529 dwell on the facts. In a Supreme Court case, 00:07:25.709 --> 00:07:27.769 aren't the facts the whole point of being there? 00:07:27.930 --> 00:07:31.680 Usually. Yes, but here, the fax was a stand -in 00:07:31.680 --> 00:07:33.980 for the word on the jacket. Berger was giving 00:07:33.980 --> 00:07:37.240 him a coded, very stern warning. Like, do not 00:07:37.240 --> 00:07:39.660 say that word in my courtroom. Exactly, do not 00:07:39.660 --> 00:07:42.870 say it. Oh, wow. That is a trap, isn't it? It 00:07:42.870 --> 00:07:45.009 is a massive trap. Think about it strategically. 00:07:45.269 --> 00:07:48.029 If Nimmer agrees and uses a euphemism, if he 00:07:48.029 --> 00:07:50.389 stands up there and says the expletive or the 00:07:50.389 --> 00:07:52.850 four letter word, he is implicitly admitting 00:07:52.850 --> 00:07:54.930 that the word is too dangerous or too offensive 00:07:54.930 --> 00:07:57.290 or too dirty to be spoken in a serious place. 00:07:57.490 --> 00:07:59.949 Right. He'd be conceding the state's entire argument 00:07:59.949 --> 00:08:01.870 before he even opened his mouth. He'd be saying 00:08:01.870 --> 00:08:04.089 this word is so bad, even the defense lawyer 00:08:04.089 --> 00:08:07.240 won't say it in public. Exactly. He would completely 00:08:07.240 --> 00:08:09.680 lose the moral high ground of his free speech 00:08:09.680 --> 00:08:12.459 argument. But on the flip side, if he does say 00:08:12.459 --> 00:08:14.800 it, he risks offending the Chief Justice of the 00:08:14.800 --> 00:08:17.259 United States and turning the whole court against 00:08:17.259 --> 00:08:19.879 him immediately. Talk about pressure. So what 00:08:19.879 --> 00:08:22.439 did he do? Did he fold? He did not fold. He looked 00:08:22.439 --> 00:08:24.379 the Chief Justice right in the eye and said, 00:08:24.540 --> 00:08:27.100 what this young man did was to walk through a 00:08:27.100 --> 00:08:29.899 courthouse corridor wearing a jacket on which 00:08:29.899 --> 00:08:33.279 were inscribed the words, fuck the draft. Man. 00:08:33.789 --> 00:08:36.029 You could almost hear the gasp in the room, just 00:08:36.029 --> 00:08:38.370 the silence after that. It was a huge gamble, 00:08:38.490 --> 00:08:41.009 but it worked because it stripped the forbidden 00:08:41.009 --> 00:08:43.789 power away from the word. It forced the justices 00:08:43.789 --> 00:08:45.769 to deal with the reality of the speech itself, 00:08:45.870 --> 00:08:48.509 not some sanitized, polite version of it. So 00:08:48.509 --> 00:08:51.250 Nemer makes his stand. What was the counter argument 00:08:51.250 --> 00:08:53.789 from the state? Who was arguing for California? 00:08:54.190 --> 00:08:57.409 A lawyer named Michael T. Sauer. And his argument 00:08:57.409 --> 00:08:59.330 is really interesting to look at because he got 00:08:59.330 --> 00:09:02.330 pushed into a corner by the justices, too. Justice 00:09:02.330 --> 00:09:05.269 Potter Stewart asked him a really pointed hypothetical 00:09:05.269 --> 00:09:08.490 question. What did he ask? He asked Sauer, if 00:09:08.490 --> 00:09:11.090 Cohen had worn a jacket that said, I strongly 00:09:11.090 --> 00:09:14.289 oppose the draft, would he be here in front of 00:09:14.289 --> 00:09:16.909 this court? And obviously the answer is no. Right. 00:09:17.370 --> 00:09:20.049 Sauer had to admit that. He conceded that the 00:09:20.049 --> 00:09:22.490 entire conviction wasn't about the anti -war 00:09:22.490 --> 00:09:24.990 sentiment. It was entirely about that one specific 00:09:24.990 --> 00:09:27.830 word. He argued that the word itself was the 00:09:27.830 --> 00:09:30.529 offensive conduct. OK, so this brings us to the 00:09:30.529 --> 00:09:33.389 actual decision. The sources say it was a five 00:09:33.389 --> 00:09:35.850 to four split, which is as close as it gets. 00:09:35.970 --> 00:09:38.730 Razors in. Justice John Harlan wrote the majority 00:09:38.730 --> 00:09:41.320 opinion. And this is where we get into that speech 00:09:41.320 --> 00:09:43.779 versus conduct thing. Can you break that down 00:09:43.779 --> 00:09:46.360 for us? Because I feel like putting on a jacket 00:09:46.360 --> 00:09:49.120 and walking around is definitely conduct. It's 00:09:49.120 --> 00:09:51.559 a physical action in the real world. This is 00:09:51.559 --> 00:09:53.580 honestly the hardest part of First Amendment 00:09:53.580 --> 00:09:55.259 law to wrap your head around. You are completely 00:09:55.259 --> 00:09:57.320 right. Putting on a jacket is an action. Walking 00:09:57.320 --> 00:10:00.159 down a hallway is an action. But Justice Harlan 00:10:00.159 --> 00:10:02.419 argued that the only reason the state punished 00:10:02.419 --> 00:10:04.580 Cohen was because of the message communicated 00:10:04.580 --> 00:10:07.850 by that action. The ink on the jacket. Exactly. 00:10:07.970 --> 00:10:10.190 It wasn't the act of wearing a jacket that was 00:10:10.190 --> 00:10:13.049 illegal. It was the specific ink on the fabric. 00:10:13.590 --> 00:10:15.629 Therefore, Harlan said, it has to be treated 00:10:15.629 --> 00:10:19.190 legally as speech, not conduct. OK, I think I 00:10:19.190 --> 00:10:21.450 get it. So if the law targets the meaning of 00:10:21.450 --> 00:10:24.129 what you're doing, it's speech. But if it targets 00:10:24.129 --> 00:10:26.090 the physical action, like if he was blocking 00:10:26.090 --> 00:10:29.570 a doorway with his body, then it's conduct. Precisely. 00:10:29.870 --> 00:10:32.210 Harlan ruled that the conviction rested solely 00:10:32.210 --> 00:10:34.950 on speech. And then he pivoted to the big question, 00:10:35.149 --> 00:10:38.200 the why. Why can't the state ban this one single 00:10:38.200 --> 00:10:41.240 word? Harlan said that while the state absolutely 00:10:41.240 --> 00:10:43.940 has an interest in keeping the peace, it cannot 00:10:43.940 --> 00:10:46.480 achieve that peace by sanitizing public debate. 00:10:46.620 --> 00:10:48.279 And this is where that famous line comes in, 00:10:48.320 --> 00:10:50.720 right? Yes. Harlan wrote this incredible passage. 00:10:50.779 --> 00:10:52.799 He said, while the particular four -letter word 00:10:52.799 --> 00:10:55.179 being litigated here is perhaps more distasteful 00:10:55.179 --> 00:10:57.519 than most others of its genre, it is nevertheless 00:10:57.519 --> 00:11:00.419 often true that one man's vulgarity is another's 00:11:00.419 --> 00:11:03.080 lyric. One man's vulgarity is another's lyric. 00:11:03.240 --> 00:11:05.600 It's beautiful, honestly. But isn't it also kind 00:11:05.600 --> 00:11:07.799 of relativistic? It sounds like he's saying there 00:11:07.799 --> 00:11:09.899 is objectively no such thing as bad language. 00:11:10.120 --> 00:11:13.019 In a strict legal sense, yes, that is what he's 00:11:13.019 --> 00:11:14.860 saying. He's saying the government is simply 00:11:14.860 --> 00:11:17.840 not capable of drawing a clean, objective line 00:11:17.840 --> 00:11:21.440 between good words and bad words. It's far too 00:11:21.440 --> 00:11:24.700 subjective. One judge might hate a word, another 00:11:24.700 --> 00:11:27.899 might not mind it. But Harlan went even further 00:11:27.899 --> 00:11:30.860 than that. He talked about what he called the 00:11:30.860 --> 00:11:34.320 emotive function of speech. The emotive function. 00:11:34.919 --> 00:11:37.620 What does that actually mean in practice? Well, 00:11:37.740 --> 00:11:39.519 think about the hypothetical that came up in 00:11:39.519 --> 00:11:42.799 oral arguments. Imagine if Cohen had worn a nice 00:11:42.799 --> 00:11:45.000 suit and tie and held up a neatly printed sign 00:11:45.000 --> 00:11:47.179 that said, I disapprove of the Selective Service 00:11:47.179 --> 00:11:49.840 System. I mean, factually, it means the exact 00:11:49.840 --> 00:11:51.759 same thing. He doesn't like the draft. Factually, 00:11:51.840 --> 00:11:54.700 yes. But emotionally, does it hit the same way? 00:11:54.860 --> 00:11:57.179 No way. It has absolutely no punch. There's no 00:11:57.179 --> 00:12:00.000 anger. It's totally sterile. Exactly. And that 00:12:00.000 --> 00:12:02.679 is Harlan's point. He argued that words serve 00:12:02.679 --> 00:12:04.940 a dual purpose. They convey facts and ideas, 00:12:05.100 --> 00:12:07.879 yes, but they also convey deep emotion. If the 00:12:07.879 --> 00:12:09.980 government forces you to be polite, they are 00:12:09.980 --> 00:12:12.200 actually stripping away the intensity of your 00:12:12.200 --> 00:12:14.600 message. They are neutering your speech. The 00:12:14.600 --> 00:12:16.940 court ruled that the Constitution protects the 00:12:16.940 --> 00:12:19.120 emotion of the speaker just as much as the factual 00:12:19.120 --> 00:12:22.440 idea. That is such a powerful idea. The idea 00:12:22.440 --> 00:12:25.340 that being rude, or at least being raw and offensive, 00:12:25.700 --> 00:12:28.700 is actually a necessary part of being heard sometimes. 00:12:29.879 --> 00:12:31.720 But not everyone on the court agreed with this 00:12:31.720 --> 00:12:34.519 right. We had four justices who said, no, this 00:12:34.519 --> 00:12:37.179 is entirely wrong. What was their problem with 00:12:37.179 --> 00:12:40.120 Harlan's logic? The dissent was led by Justice 00:12:40.120 --> 00:12:42.440 Harry Blackmun. And frankly, I think a lot of 00:12:42.440 --> 00:12:44.620 listeners today might really sympathize with 00:12:44.620 --> 00:12:47.360 his view. He didn't look at this and see a grand, 00:12:47.519 --> 00:12:50.299 poignant statement on the Vietnam War. He saw 00:12:50.299 --> 00:12:52.340 a bratty kid acting out in a public building. 00:12:52.639 --> 00:12:55.360 I mean, he's a 19 -year -old kid. Bratty is definitely 00:12:55.360 --> 00:12:57.990 a distinct possibility. Right. Blackmun called 00:12:57.990 --> 00:13:00.610 the whole thing an absurd and immature antic. 00:13:00.870 --> 00:13:03.210 He argued that this wasn't high -minded speech 00:13:03.210 --> 00:13:05.909 at all. It was conduct. It was a physical disturbance 00:13:05.909 --> 00:13:08.429 of the peace in a place of business. He basically 00:13:08.429 --> 00:13:10.610 said, look, this isn't Martin Luther King Jr. 00:13:10.730 --> 00:13:13.029 giving a soaring speech about civil rights. This 00:13:13.029 --> 00:13:15.690 is a punk with a dirty jacket. We shouldn't dignify 00:13:15.690 --> 00:13:17.629 it with the highest constitutional protection. 00:13:17.990 --> 00:13:20.879 I can totally see that side of it. Because if 00:13:20.879 --> 00:13:23.519 you treat every single antic as protected speech, 00:13:23.799 --> 00:13:26.240 doesn't it make it impossible to have any rules 00:13:26.240 --> 00:13:28.539 at all? Like, could I just walk into a public 00:13:28.539 --> 00:13:30.580 library and start screaming trophanities because 00:13:30.580 --> 00:13:34.370 I'm expressing my emotion? Well, no. And that's 00:13:34.370 --> 00:13:36.110 where the time, place and manner restrictions 00:13:36.110 --> 00:13:39.269 come in. You can't scream in a library because 00:13:39.269 --> 00:13:41.870 your noise is physically preventing other people 00:13:41.870 --> 00:13:43.950 from using the library for its intended purpose. 00:13:44.210 --> 00:13:46.570 But Cohen wasn't screaming. He was completely 00:13:46.570 --> 00:13:49.450 silent. He was just physically present. The only 00:13:49.450 --> 00:13:51.470 disturbance was that people had to look at a 00:13:51.470 --> 00:13:53.950 word they didn't like. Which brings up the captive 00:13:53.950 --> 00:13:56.210 audience argument that the state made. California 00:13:56.210 --> 00:13:58.830 said, the people in this courthouse have no choice. 00:13:59.009 --> 00:14:01.429 They are there for jury duty or to pay fines. 00:14:01.769 --> 00:14:04.269 They're forced to see this word. Yes, and Harlan 00:14:04.269 --> 00:14:07.009 had a very simple, very blunt answer to that 00:14:07.009 --> 00:14:09.730 captive audience idea. He said, avert your eyes. 00:14:09.809 --> 00:14:12.210 Just look away. That's the legal remedy. Just 00:14:12.210 --> 00:14:14.590 look away. He ruled that in a general public 00:14:14.590 --> 00:14:18.210 space, we are rarely truly captive. If you don't 00:14:18.210 --> 00:14:20.129 like the message on the jacket, look at the wall. 00:14:20.730 --> 00:14:22.990 Look at your shoes. Look out the window. The 00:14:22.990 --> 00:14:25.830 burden is on you to ignore it, not on Cohen to 00:14:25.830 --> 00:14:27.950 silence himself to protect your sensibilities. 00:14:27.970 --> 00:14:30.129 That puts a massive amount of responsibility 00:14:30.129 --> 00:14:32.529 on the everyday citizen to just deal with things 00:14:32.529 --> 00:14:35.509 they hate. Right. So Cohen wins. The Supreme 00:14:35.509 --> 00:14:38.149 Court overturns his conviction. But this case 00:14:38.149 --> 00:14:40.649 didn't just stop with one guy in one jacket. 00:14:41.149 --> 00:14:43.169 The sources show it opened the door for a lot 00:14:43.169 --> 00:14:45.610 of other controversial things. Oh, it blew the 00:14:45.610 --> 00:14:48.529 doors completely off the hinges. Cohen became 00:14:48.529 --> 00:14:50.789 the foundational precedent that protects a lot 00:14:50.789 --> 00:14:53.269 of speech that people find deeply, deeply offensive. 00:14:53.450 --> 00:14:55.570 Have you heard of the Skokie case? That's the 00:14:55.570 --> 00:14:58.389 Nazis, right? In Illinois? Yes. National Socialist 00:14:58.389 --> 00:15:01.100 Party of America v. Village of Skokie. This was 00:15:01.100 --> 00:15:04.379 in 1977. American neo -Nazis wanted to march 00:15:04.379 --> 00:15:06.779 in full uniform through a town that had a massive 00:15:06.779 --> 00:15:09.519 population of Jewish residents, including Holocaust 00:15:09.519 --> 00:15:12.019 survivors. Which is just monstrously offensive. 00:15:12.039 --> 00:15:14.360 It's designed to cause pain. It was horrific. 00:15:14.519 --> 00:15:17.320 But the courts, leaning heavily on the logic 00:15:17.320 --> 00:15:19.759 of Cohen, said you cannot stop them from marching 00:15:19.759 --> 00:15:21.840 just because the message is deeply offensive. 00:15:22.480 --> 00:15:25.139 Mere offensiveness is not enough to suspend the 00:15:25.139 --> 00:15:28.379 First Amendment. That is such a tough pill to 00:15:28.379 --> 00:15:31.679 swallow. It's so easy to defend a teenager protesting 00:15:31.679 --> 00:15:35.039 a war. It's really hard to defend literal Nazis. 00:15:35.120 --> 00:15:38.100 It is incredibly hard. But the legal logic is 00:15:38.100 --> 00:15:41.120 a slippery slope. If the government has the power 00:15:41.120 --> 00:15:44.159 to ban the Nazi march because the majority finds 00:15:44.159 --> 00:15:46.690 it offensive, then that same government. also 00:15:46.690 --> 00:15:49.230 has the power to ban an anti -war protest or 00:15:49.230 --> 00:15:51.269 a civil rights march because someone else finds 00:15:51.269 --> 00:15:53.830 that offensive. It essentially has to be all 00:15:53.830 --> 00:15:55.690 or nothing. And this logic applies to fighting 00:15:55.690 --> 00:15:57.669 words too, right? It narrowed the definition 00:15:57.669 --> 00:16:00.389 of fighting words significantly. Look at R .A 00:16:00.389 --> 00:16:03.309 .V. St. Paul in 1992. The Supreme Court struck 00:16:03.309 --> 00:16:05.649 down a city ordinance that banned cross -burning. 00:16:05.769 --> 00:16:07.879 Really? They allowed cross -burning? Well, they 00:16:07.879 --> 00:16:10.240 struck down that specific law because the law 00:16:10.240 --> 00:16:13.639 only banned bias motivated fighting words like 00:16:13.639 --> 00:16:18.019 words based on race, religion or gender. The 00:16:18.019 --> 00:16:20.480 court said, citing Cohen principles, that you 00:16:20.480 --> 00:16:22.419 can't pick and choose which insults are illegal 00:16:22.419 --> 00:16:24.740 based on the content of the message. You can't 00:16:24.740 --> 00:16:27.539 say racism is illegal speech, but political insults 00:16:27.539 --> 00:16:30.039 are fine. The government can't pick sides in 00:16:30.039 --> 00:16:32.879 a debate, even an ugly one. And I saw in the 00:16:32.879 --> 00:16:34.840 notes there was a case about swearing at police 00:16:34.840 --> 00:16:37.220 officers, too. Yes, Washington v. Montgomery. 00:16:37.460 --> 00:16:40.039 A 15 -year -old was shouting profanities at police 00:16:40.039 --> 00:16:42.559 officers. The court ruled that under Cohen, just 00:16:42.559 --> 00:16:44.539 yelling swear words at cops aren't automatically 00:16:44.539 --> 00:16:47.080 fighting words. Restricting that kind of raw 00:16:47.080 --> 00:16:50.159 emotion risks suppressing actual ideas and criticism 00:16:50.159 --> 00:16:51.820 of the government. But wait, there have to be 00:16:51.820 --> 00:16:53.539 some limits, right? Because I know for a fact 00:16:53.539 --> 00:16:55.360 I can't just go on broadcast television and say 00:16:55.360 --> 00:16:57.840 whatever I want. George Carlin proved that. Right. 00:16:57.940 --> 00:16:59.720 And that is the exception that really proves 00:16:59.720 --> 00:17:02.080 the rule here. In FCC v. Pacifica Foundation, 00:17:02.379 --> 00:17:04.480 which was the famous seven dirty words radio 00:17:04.480 --> 00:17:07.660 broadcast case in 1978, the court ruled that 00:17:07.660 --> 00:17:09.720 the government actually could regulate indecent 00:17:09.720 --> 00:17:12.700 speech on broadcast radio. But why? If I can 00:17:12.700 --> 00:17:14.720 wear the jacket in a public building, why can't 00:17:14.720 --> 00:17:16.890 I say it on the radio? Because broadcast radio 00:17:16.890 --> 00:17:19.230 comes directly into your home. The court said 00:17:19.230 --> 00:17:21.470 you can't just easily avert your eyes from a 00:17:21.470 --> 00:17:23.670 sudden noise in your own living room. You are 00:17:23.670 --> 00:17:26.450 a captive audience in your house. Your home is 00:17:26.450 --> 00:17:29.670 a private sanctuary. A courthouse hallway is 00:17:29.670 --> 00:17:32.630 a public forum. Ah, okay. That makes sense. And 00:17:32.630 --> 00:17:35.089 schools are another big limitation. In Bethel 00:17:35.089 --> 00:17:38.049 School District v. Fraser in 1986, the court 00:17:38.049 --> 00:17:41.269 said schools absolutely can regulate indecent 00:17:41.269 --> 00:17:43.690 speech because minors are involved. Students 00:17:43.690 --> 00:17:46.109 don't have the exact same. coextensive rights 00:17:46.109 --> 00:17:49.049 as adults in a public square. Okay, so Cohen 00:17:49.049 --> 00:17:51.690 protects my right to be vulgar and public, but 00:17:51.690 --> 00:17:53.890 not necessarily on the public airwaves or inside 00:17:53.890 --> 00:17:55.950 a middle school. Correct. We've painted this 00:17:55.950 --> 00:17:58.269 whole thing as a massive win for freedom, and 00:17:58.269 --> 00:18:01.049 legally it clearly is. But I want to push back 00:18:01.049 --> 00:18:03.589 on the cultural side of this for a minute. Looking 00:18:03.589 --> 00:18:06.089 at the scholarly critique in our sources, there 00:18:06.089 --> 00:18:08.910 are serious legal minds who think this ruling 00:18:08.910 --> 00:18:11.490 was actually a huge mistake for society. Right. 00:18:11.750 --> 00:18:14.650 Absolutely. There is a very strong counter -perspective. 00:18:15.099 --> 00:18:18.099 Take Professor R. George Wright. He argued that 00:18:18.099 --> 00:18:20.380 speakers should have to maintain at least a minimum 00:18:20.380 --> 00:18:23.059 level of decorum, that you shouldn't be allowed 00:18:23.059 --> 00:18:26.140 to just disrespect reasonably tolerant people 00:18:26.140 --> 00:18:28.279 in a shared space. It's just basic civility. 00:18:28.400 --> 00:18:31.220 Right. And Archibald Cox, who listeners might 00:18:31.220 --> 00:18:33.920 know as the famous Watergate special prosecutor, 00:18:34.220 --> 00:18:37.000 he argued that the Cohen ruling unnecessarily 00:18:37.000 --> 00:18:39.539 lowered the entire standard of public debate 00:18:39.539 --> 00:18:41.859 in America. Basically saying that we instituted 00:18:41.859 --> 00:18:44.829 a race to the bottom. Yes. His argument is that 00:18:44.829 --> 00:18:47.329 by legally protecting the absolute lowest common 00:18:47.329 --> 00:18:50.210 denominator of speech, we degrade the whole conversation. 00:18:50.529 --> 00:18:53.089 If everyone just starts screaming profanity at 00:18:53.089 --> 00:18:55.130 each other, nobody is actually listening to the 00:18:55.130 --> 00:18:57.750 ideas anymore. It turns serious politics into 00:18:57.750 --> 00:18:59.769 a shouting match. And another scholar in our 00:18:59.769 --> 00:19:02.250 notes, Thomas Krattenmaker, pointed out that 00:19:02.250 --> 00:19:04.289 the social context has completely changed anyway. 00:19:04.470 --> 00:19:07.509 Back in 1971, dropping the F word in public was 00:19:07.509 --> 00:19:10.930 like flapping a nuclear bomb. Today, it's basically 00:19:10.930 --> 00:19:14.220 a firecracker. Exactly. Kratnaker argued that 00:19:14.220 --> 00:19:16.519 Cohen was using that specific word intentionally 00:19:16.519 --> 00:19:18.980 to shock people. It wasn't just casual slang. 00:19:19.240 --> 00:19:22.160 But today, partly because of rulings like Cohen 00:19:22.160 --> 00:19:24.759 that protected it, that shark value has totally 00:19:24.759 --> 00:19:27.319 worn off. We're completely desensitized to it. 00:19:27.400 --> 00:19:30.519 So in a weird way, by the Supreme Court allowing 00:19:30.519 --> 00:19:33.779 the word to be used freely, we essentially stripped 00:19:33.779 --> 00:19:36.579 it of the very power. that Paul Cohen was trying 00:19:36.579 --> 00:19:38.799 to harness in the first place. That is the ultimate 00:19:38.799 --> 00:19:40.980 paradox of this case. When everything is allowed 00:19:40.980 --> 00:19:43.240 to be shocking, nothing is shocking anymore. 00:19:43.599 --> 00:19:46.140 This has been such a fascinating look at how 00:19:46.140 --> 00:19:48.799 a single, seemingly small moment in a hallway 00:19:48.799 --> 00:19:51.819 changed the entire landscape of American law. 00:19:52.079 --> 00:19:54.440 So just to recap the deep dive for everyone listening, 00:19:54.619 --> 00:19:56.640 Paul Cohen wore a jacket with a swear word on 00:19:56.640 --> 00:19:58.960 it to protest the draft. The state tried to ban 00:19:58.960 --> 00:20:00.980 the word to keep the peace and maintain manners, 00:20:01.180 --> 00:20:03.299 but the Supreme Court stepped in and said no, 00:20:03.420 --> 00:20:06.279 deciding that protecting the raw emotional intensity 00:20:06.279 --> 00:20:08.500 of free speech is actually more important than 00:20:08.500 --> 00:20:10.759 forced politeness and that the government should 00:20:10.759 --> 00:20:13.359 never act as the editor of our vocabulary. And 00:20:13.359 --> 00:20:16.559 it proves that free expression is powerful medicine. 00:20:16.660 --> 00:20:19.119 It might taste bitter sometimes and it definitely 00:20:19.119 --> 00:20:21.980 has some nasty side effects, but it is fundamentally 00:20:21.980 --> 00:20:25.640 necessary for a free society to function. So 00:20:25.640 --> 00:20:27.519 here is the final provocative thought I want 00:20:27.519 --> 00:20:30.240 to leave you with today. We started by asking 00:20:30.240 --> 00:20:32.000 if the government can clean up our language. 00:20:32.480 --> 00:20:35.099 Cohen versus California clearly says no, they 00:20:35.099 --> 00:20:38.079 can't. But that leaves us with all the responsibility. 00:20:38.680 --> 00:20:41.099 If the law isn't going to filter out the noise 00:20:41.099 --> 00:20:43.559 and the vulgarity, we have to be the ones to 00:20:43.559 --> 00:20:46.750 filter the signal from the noise ourselves. The 00:20:46.750 --> 00:20:48.970 real takeaway from this deep dive isn't just 00:20:48.970 --> 00:20:50.809 that you can say whatever you want. It's that 00:20:50.809 --> 00:20:53.109 because you can, as a citizen and a listener, 00:20:53.210 --> 00:20:54.849 you have to work twice as hard to understand 00:20:54.849 --> 00:20:56.809 what your neighbor actually means behind all 00:20:56.809 --> 00:20:59.910 the shouting. Does allowing the lowest common 00:20:59.910 --> 00:21:02.569 denominator empower us, or does it just degrade 00:21:02.569 --> 00:21:05.029 the conversation until no one is listening? It 00:21:05.029 --> 00:21:07.529 puts the burden entirely on us to look past the 00:21:07.529 --> 00:21:09.670 vulgarity and try to find the lyric, even when 00:21:09.670 --> 00:21:11.589 it's really hard to hear. Which is probably a 00:21:11.589 --> 00:21:13.430 pretty good lesson for surviving the internet 00:21:13.430 --> 00:21:16.410 age, too. Thanks for joining us as we unpack 00:21:16.410 --> 00:21:18.730 the sources, and we'll catch you on the next 00:21:18.730 --> 00:21:19.250 deep dive.