I want you to start today by thinking about boundaries.
Like, imagine you are walking through a government
building. Right. Just minding your own business.
Maybe you're there to pay a parking ticket or
testify as a witness or something. And you are
wearing a jacket. Okay. It's a bit ratty, sure,
but it's just clothes. But written on the back
of this jacket is a four -letter word. A word
that even today you probably wouldn't shout out
in a church or, you know, kindergarten class.
And you definitely would have in 1968. Right.
Definitely not then. So a police officer sees
you. He follows you down the hall. And eventually
you end up in handcuffs. You get sentenced to
30 days in actual jail. Wow. Yeah. You didn't
punch anyone. You didn't break a window. You
didn't even yell. You just wore a jacket. Does
that sound like something that could happen in
the United States? I mean, it sounds like fiction
or maybe some dystopian novel about a totalitarian
state, but it is 100 % real. It feels completely
wild to me that you could lose a month of your
liberty over an outfit choice. But that is exactly
the story we are digging into today. For this
deep dive, we are looking at Cohen v. California.
It's a Supreme Court case from 1971 and... Honestly,
looking at the source materials we have, this
might be one of the most important cases that
people have never even heard of. I would completely
agree with that. It's a massive cornerstone case.
Because on the surface, sure, it looks like a
case about a rude teenager. But when you peel
back the layers, it's really about the government's
power to cleanse public discourse. Cleanse it.
Right. It asks this really fundamental question.
Can the state force you to be polite? And if
they can force you to be polite, what else can
they force you to be? Exactly. And that is really
the mission for our Deep Drive today. We need
to unpack how a single jacket worn by a 19 -year
-old department store worker ended up establishing
the legal principle that, and this is a famous
quote, one man's vulgarity is another's lyric.
I've heard that quote before, actually, but I
had no idea it came from a Supreme Court justice
talking about the F word. It really did. But
before we get to the high court and all that
legal philosophy, we have to go back to the street
level. Set the scene for us. It's April 1968.
Yeah, context is everything here. 1968 was an
absolute pressure cooker. You have the Vietnam
War raging, and it is incredibly unpopular. You
have the draft, which is actively pulling young
men out of their lives and sending them into
a jungle halfway across the world. Right, people
were terrified. Terrified and angry. The country
is completely divided. It's loud. The protests
are massive. And right in the middle of this,
we have our defendant, Paul Robert Cohen. He's
19. and he heads into the Los Angeles Hall of
Justice. Now, when I first read this, I assumed
he was there to protest, like he was going to
hold a sign and shout at a judge or something.
That's what most people think, but that's the
irony of this whole case. He wasn't there to
stage a demonstration at all. He wasn't. No,
he was actually there to testify as a defense
witness in a completely unrelated hearing. But
he was wearing this jacket, and on the back,
handwritten in marker, were the words, Fuck the
draft. Okay, so he's walking into a courthouse,
literally a place of law and order wearing that.
Did he just walk right up to the judge wearing
it? Because I feel like any judge in 1968 would
throw you out immediately or hold you in contempt.
And that is a really crucial detail in the sources.
He didn't. The record shows that Coleman actually
removed the jacket when he entered the courtroom
itself. Oh, he took it off? Yeah, he took it
off. He held it. folded over his arm or put it
down on a bench. He actually seemed to understand
that the courtroom itself had specific rules
of decorum. Okay, so the offense, the actual
crime, didn't even happen in front of a judge.
It happened out in the hallway. Correct. He was
just walking through the corridor. There were
men, women, and children present in the hall.
And a police officer saw the jacket. But the
officer didn't ask Cohen to take it off. He didn't
ask him to leave the building. He just went straight
to the judge? Right. He went to the presiding
judge and asked to hold Cohen in contempt of
court. Because of the hallway. Did the judge
agree? The judge actually took no action. He
basically ignored it. So the officer just waits.
He waits until Cohen leaves the courtroom and
goes back out into the public corridor. And that
is when the officer arrests him. This is the
part I'm kind of stuck on. What is the actual
charge here? Because I didn't think having a
potty mouth was a literal crime in the penal
code. They charged him under California Penal
Code Section 415. Which is? The specific charge
was disturbing the peace by engaging in tumultuous
or offensive conduct. Offensive conduct? Yeah.
That seems incredibly broad. I mean, I find people
who chew with their mouth open offensive, but
I can't have them arrested in a hallway. And
that right there is the hook the prosecution
hung their entire hat on. They argued that offensive
conduct legally means behavior that has a tendency
to provoke violence. Wait, provoke violence?
Yeah. Their argument was essentially someone
might see that jacket. get offended, get really
angry, and punch you. Therefore, you wearing
the jacket is disturbing the peace. So it's like
a preemptive arrest. you're going to jail because
someone else might lose their temper at you that
was exactly the logic and it worked at the trial
level cohen was convicted and he was sentenced
to 30 days in jail 30 days 30 days he appealed
obviously but the california courts were not
having it at all the court of appeal upheld the
conviction they explicitly said cohen carefully
chose the forum for shock value meaning he wore
to a courthouse on purpose exactly and they said
his words were below the minimum standard of
propriety minimum standard of propriety that
sounds like something a victorian headmaster
would say but playing devil's advocate for a
second here it is a courthouse sure don't we
want courthouses to be dignified places like
if everyone walked around with profanity on their
shirts wouldn't that actually be a problem for
running a legal system that is a very fair point
and it's exactly what the state of california
argued on appeal they claimed they had a right
And really a duty to maintain public order and
decency. They were very careful to say we aren't
banning his opinion on the draft. They just didn't
like how he said it. Right. They were banning
the way he expressed it. They basically said,
you can say I hate the draft all you want, but
you cannot use that specific four letter word
to do it. It feels like a distinction without
a difference, though. If you tell me I can be
angry, but I can't sound angry, you're kind of
policing my message. But obviously the California
courts disagreed with me. So. Cohen is facing
jail time. Does he just give up at that point?
No, he keeps fighting. The California Supreme
Court actually refused to even hear the case,
which usually means the end of the road for a
defendant. But then in 1970, the U .S. Supreme
Court granted a writ of certiorari. Meaning they
agreed to take the case. They agreed to review
it. Yes. OK, so now we are in Washington, D .C.,
the highest court in the land. The stakes are
huge. And this leads to what the source notes
call the Nimmer moment. It sounds like a movie
scene. What happened there? It really is cinematic.
So Cohen's lawyer is a man named Melville Nimmer.
He's standing before the Burger Court. Now, Chief
Justice Warren Burger was very conservative,
very focused on tradition and decorum. He opens
the session and he looks down at Nimmer from
the bench and says, essentially, Mr. Nimmer,
you don't need to dwell on the facts. Wait, don't
dwell on the facts. In a Supreme Court case,
aren't the facts the whole point of being there?
Usually. Yes, but here, the fax was a stand -in
for the word on the jacket. Berger was giving
him a coded, very stern warning. Like, do not
say that word in my courtroom. Exactly, do not
say it. Oh, wow. That is a trap, isn't it? It
is a massive trap. Think about it strategically.
If Nimmer agrees and uses a euphemism, if he
stands up there and says the expletive or the
four letter word, he is implicitly admitting
that the word is too dangerous or too offensive
or too dirty to be spoken in a serious place.
Right. He'd be conceding the state's entire argument
before he even opened his mouth. He'd be saying
this word is so bad, even the defense lawyer
won't say it in public. Exactly. He would completely
lose the moral high ground of his free speech
argument. But on the flip side, if he does say
it, he risks offending the Chief Justice of the
United States and turning the whole court against
him immediately. Talk about pressure. So what
did he do? Did he fold? He did not fold. He looked
the Chief Justice right in the eye and said,
what this young man did was to walk through a
courthouse corridor wearing a jacket on which
were inscribed the words, fuck the draft. Man.
You could almost hear the gasp in the room, just
the silence after that. It was a huge gamble,
but it worked because it stripped the forbidden
power away from the word. It forced the justices
to deal with the reality of the speech itself,
not some sanitized, polite version of it. So
Nemer makes his stand. What was the counter argument
from the state? Who was arguing for California?
A lawyer named Michael T. Sauer. And his argument
is really interesting to look at because he got
pushed into a corner by the justices, too. Justice
Potter Stewart asked him a really pointed hypothetical
question. What did he ask? He asked Sauer, if
Cohen had worn a jacket that said, I strongly
oppose the draft, would he be here in front of
this court? And obviously the answer is no. Right.
Sauer had to admit that. He conceded that the
entire conviction wasn't about the anti -war
sentiment. It was entirely about that one specific
word. He argued that the word itself was the
offensive conduct. OK, so this brings us to the
actual decision. The sources say it was a five
to four split, which is as close as it gets.
Razors in. Justice John Harlan wrote the majority
opinion. And this is where we get into that speech
versus conduct thing. Can you break that down
for us? Because I feel like putting on a jacket
and walking around is definitely conduct. It's
a physical action in the real world. This is
honestly the hardest part of First Amendment
law to wrap your head around. You are completely
right. Putting on a jacket is an action. Walking
down a hallway is an action. But Justice Harlan
argued that the only reason the state punished
Cohen was because of the message communicated
by that action. The ink on the jacket. Exactly.
It wasn't the act of wearing a jacket that was
illegal. It was the specific ink on the fabric.
Therefore, Harlan said, it has to be treated
legally as speech, not conduct. OK, I think I
get it. So if the law targets the meaning of
what you're doing, it's speech. But if it targets
the physical action, like if he was blocking
a doorway with his body, then it's conduct. Precisely.
Harlan ruled that the conviction rested solely
on speech. And then he pivoted to the big question,
the why. Why can't the state ban this one single
word? Harlan said that while the state absolutely
has an interest in keeping the peace, it cannot
achieve that peace by sanitizing public debate.
And this is where that famous line comes in,
right? Yes. Harlan wrote this incredible passage.
He said, while the particular four -letter word
being litigated here is perhaps more distasteful
than most others of its genre, it is nevertheless
often true that one man's vulgarity is another's
lyric. One man's vulgarity is another's lyric.
It's beautiful, honestly. But isn't it also kind
of relativistic? It sounds like he's saying there
is objectively no such thing as bad language.
In a strict legal sense, yes, that is what he's
saying. He's saying the government is simply
not capable of drawing a clean, objective line
between good words and bad words. It's far too
subjective. One judge might hate a word, another
might not mind it. But Harlan went even further
than that. He talked about what he called the
emotive function of speech. The emotive function.
What does that actually mean in practice? Well,
think about the hypothetical that came up in
oral arguments. Imagine if Cohen had worn a nice
suit and tie and held up a neatly printed sign
that said, I disapprove of the Selective Service
System. I mean, factually, it means the exact
same thing. He doesn't like the draft. Factually,
yes. But emotionally, does it hit the same way?
No way. It has absolutely no punch. There's no
anger. It's totally sterile. Exactly. And that
is Harlan's point. He argued that words serve
a dual purpose. They convey facts and ideas,
yes, but they also convey deep emotion. If the
government forces you to be polite, they are
actually stripping away the intensity of your
message. They are neutering your speech. The
court ruled that the Constitution protects the
emotion of the speaker just as much as the factual
idea. That is such a powerful idea. The idea
that being rude, or at least being raw and offensive,
is actually a necessary part of being heard sometimes.
But not everyone on the court agreed with this
right. We had four justices who said, no, this
is entirely wrong. What was their problem with
Harlan's logic? The dissent was led by Justice
Harry Blackmun. And frankly, I think a lot of
listeners today might really sympathize with
his view. He didn't look at this and see a grand,
poignant statement on the Vietnam War. He saw
a bratty kid acting out in a public building.
I mean, he's a 19 -year -old kid. Bratty is definitely
a distinct possibility. Right. Blackmun called
the whole thing an absurd and immature antic.
He argued that this wasn't high -minded speech
at all. It was conduct. It was a physical disturbance
of the peace in a place of business. He basically
said, look, this isn't Martin Luther King Jr.
giving a soaring speech about civil rights. This
is a punk with a dirty jacket. We shouldn't dignify
it with the highest constitutional protection.
I can totally see that side of it. Because if
you treat every single antic as protected speech,
doesn't it make it impossible to have any rules
at all? Like, could I just walk into a public
library and start screaming trophanities because
I'm expressing my emotion? Well, no. And that's
where the time, place and manner restrictions
come in. You can't scream in a library because
your noise is physically preventing other people
from using the library for its intended purpose.
But Cohen wasn't screaming. He was completely
silent. He was just physically present. The only
disturbance was that people had to look at a
word they didn't like. Which brings up the captive
audience argument that the state made. California
said, the people in this courthouse have no choice.
They are there for jury duty or to pay fines.
They're forced to see this word. Yes, and Harlan
had a very simple, very blunt answer to that
captive audience idea. He said, avert your eyes.
Just look away. That's the legal remedy. Just
look away. He ruled that in a general public
space, we are rarely truly captive. If you don't
like the message on the jacket, look at the wall.
Look at your shoes. Look out the window. The
burden is on you to ignore it, not on Cohen to
silence himself to protect your sensibilities.
That puts a massive amount of responsibility
on the everyday citizen to just deal with things
they hate. Right. So Cohen wins. The Supreme
Court overturns his conviction. But this case
didn't just stop with one guy in one jacket.
The sources show it opened the door for a lot
of other controversial things. Oh, it blew the
doors completely off the hinges. Cohen became
the foundational precedent that protects a lot
of speech that people find deeply, deeply offensive.
Have you heard of the Skokie case? That's the
Nazis, right? In Illinois? Yes. National Socialist
Party of America v. Village of Skokie. This was
in 1977. American neo -Nazis wanted to march
in full uniform through a town that had a massive
population of Jewish residents, including Holocaust
survivors. Which is just monstrously offensive.
It's designed to cause pain. It was horrific.
But the courts, leaning heavily on the logic
of Cohen, said you cannot stop them from marching
just because the message is deeply offensive.
Mere offensiveness is not enough to suspend the
First Amendment. That is such a tough pill to
swallow. It's so easy to defend a teenager protesting
a war. It's really hard to defend literal Nazis.
It is incredibly hard. But the legal logic is
a slippery slope. If the government has the power
to ban the Nazi march because the majority finds
it offensive, then that same government. also
has the power to ban an anti -war protest or
a civil rights march because someone else finds
that offensive. It essentially has to be all
or nothing. And this logic applies to fighting
words too, right? It narrowed the definition
of fighting words significantly. Look at R .A
.V. St. Paul in 1992. The Supreme Court struck
down a city ordinance that banned cross -burning.
Really? They allowed cross -burning? Well, they
struck down that specific law because the law
only banned bias motivated fighting words like
words based on race, religion or gender. The
court said, citing Cohen principles, that you
can't pick and choose which insults are illegal
based on the content of the message. You can't
say racism is illegal speech, but political insults
are fine. The government can't pick sides in
a debate, even an ugly one. And I saw in the
notes there was a case about swearing at police
officers, too. Yes, Washington v. Montgomery.
A 15 -year -old was shouting profanities at police
officers. The court ruled that under Cohen, just
yelling swear words at cops aren't automatically
fighting words. Restricting that kind of raw
emotion risks suppressing actual ideas and criticism
of the government. But wait, there have to be
some limits, right? Because I know for a fact
I can't just go on broadcast television and say
whatever I want. George Carlin proved that. Right.
And that is the exception that really proves
the rule here. In FCC v. Pacifica Foundation,
which was the famous seven dirty words radio
broadcast case in 1978, the court ruled that
the government actually could regulate indecent
speech on broadcast radio. But why? If I can
wear the jacket in a public building, why can't
I say it on the radio? Because broadcast radio
comes directly into your home. The court said
you can't just easily avert your eyes from a
sudden noise in your own living room. You are
a captive audience in your house. Your home is
a private sanctuary. A courthouse hallway is
a public forum. Ah, okay. That makes sense. And
schools are another big limitation. In Bethel
School District v. Fraser in 1986, the court
said schools absolutely can regulate indecent
speech because minors are involved. Students
don't have the exact same. coextensive rights
as adults in a public square. Okay, so Cohen
protects my right to be vulgar and public, but
not necessarily on the public airwaves or inside
a middle school. Correct. We've painted this
whole thing as a massive win for freedom, and
legally it clearly is. But I want to push back
on the cultural side of this for a minute. Looking
at the scholarly critique in our sources, there
are serious legal minds who think this ruling
was actually a huge mistake for society. Right.
Absolutely. There is a very strong counter -perspective.
Take Professor R. George Wright. He argued that
speakers should have to maintain at least a minimum
level of decorum, that you shouldn't be allowed
to just disrespect reasonably tolerant people
in a shared space. It's just basic civility.
Right. And Archibald Cox, who listeners might
know as the famous Watergate special prosecutor,
he argued that the Cohen ruling unnecessarily
lowered the entire standard of public debate
in America. Basically saying that we instituted
a race to the bottom. Yes. His argument is that
by legally protecting the absolute lowest common
denominator of speech, we degrade the whole conversation.
If everyone just starts screaming profanity at
each other, nobody is actually listening to the
ideas anymore. It turns serious politics into
a shouting match. And another scholar in our
notes, Thomas Krattenmaker, pointed out that
the social context has completely changed anyway.
Back in 1971, dropping the F word in public was
like flapping a nuclear bomb. Today, it's basically
a firecracker. Exactly. Kratnaker argued that
Cohen was using that specific word intentionally
to shock people. It wasn't just casual slang.
But today, partly because of rulings like Cohen
that protected it, that shark value has totally
worn off. We're completely desensitized to it.
So in a weird way, by the Supreme Court allowing
the word to be used freely, we essentially stripped
it of the very power. that Paul Cohen was trying
to harness in the first place. That is the ultimate
paradox of this case. When everything is allowed
to be shocking, nothing is shocking anymore.
This has been such a fascinating look at how
a single, seemingly small moment in a hallway
changed the entire landscape of American law.
So just to recap the deep dive for everyone listening,
Paul Cohen wore a jacket with a swear word on
it to protest the draft. The state tried to ban
the word to keep the peace and maintain manners,
but the Supreme Court stepped in and said no,
deciding that protecting the raw emotional intensity
of free speech is actually more important than
forced politeness and that the government should
never act as the editor of our vocabulary. And
it proves that free expression is powerful medicine.
It might taste bitter sometimes and it definitely
has some nasty side effects, but it is fundamentally
necessary for a free society to function. So
here is the final provocative thought I want
to leave you with today. We started by asking
if the government can clean up our language.
Cohen versus California clearly says no, they
can't. But that leaves us with all the responsibility.
If the law isn't going to filter out the noise
and the vulgarity, we have to be the ones to
filter the signal from the noise ourselves. The
real takeaway from this deep dive isn't just
that you can say whatever you want. It's that
because you can, as a citizen and a listener,
you have to work twice as hard to understand
what your neighbor actually means behind all
the shouting. Does allowing the lowest common
denominator empower us, or does it just degrade
the conversation until no one is listening? It
puts the burden entirely on us to look past the
vulgarity and try to find the lyric, even when
it's really hard to hear. Which is probably a
pretty good lesson for surviving the internet
age, too. Thanks for joining us as we unpack
the sources, and we'll catch you on the next
deep dive.