Essay on Clothes: Cohen vs California Case

How would you feel if people were allowed to wear extremely offensive clothing in public? Imagine the effects of people’s reactions towards some of these expressions. Over history there have been many free speech cases that have reached the upper courts. The precedent case for the 1st amendment under offensive speech is known as Cohen vs California. The basis of this case was that a man by the name of Paul Robert Cohen, who was a 19 year old at the time, wore a jacket in the corridors of a California Courthouse that said “F--k the Draft”.

This expression shown by him was aimed towards the government for sending troops to fight in the Vietnam war. The Cohen vs California case was one of the main precedent cases relating to free speech, specifically with offensive speech towards people, because it drew the line between personal expression speech and offensive speech. My argument is that Paul Cohen should have been charged for his case and offensive speech to this scale should not be allowed to be displayed in public. This is because it offended enough people that the case was brought to the national stage and it also went against the decisions of the government which should be allowed but not to the level that he expressed. 

The Description of the Case

To give more of an understanding of this case, on April 26th, 1968, Paul Cohen wore a sweatshirt in a California courthouse that read the words “F--k the Draft”. The reason he was at the course in the first place was because he was testifying an unrelated case. One of the officers in the course saw him wearly the attire and asked the judge if he could be held in contempt of the court. The judge who was present did not allow Mr. Cohen to be charged for wearing the attire but instead he was arrested in the middle of the courthouse. He was convicted of violating section 415 of the California Penal Code, which prohibits "maliciously and willfully disturbing the peace or quiet of any neighborhood or person [by] tumultuous or offensive conduct”. Because of this he was sentenced to 30 days in jail for his poor choice of actions.

After this Paul Cohen appealed to the lower courts which happened to be the Appellate Department of the superior courts. After a decision could not be made, the state appealed to the California Court of Appeal to help make the decision. However they couldn't definitely claim that Mr. Cohen was guilty and charge him for a crime because of the different definitions that can come with “provoking others with violence” because of the situation that he chose to wear this attire in. After this the case was sent to the California Supreme Court but they ended up dening to take up the case because of the previous dissents and the failure that they had. Finally the case reached the Supreme Court of the United States of America.

The case was to be held on June 22, 1970. Melville Nimmer represented Paul Cohen and Michael T Sauer represented the state of California in the case. In the end there was a 5-4 vote in favor of Paul Cohen and his side of the story. The justices claimed that California was trying to censor the citizens in their state which is a violation of the 1st Amendment, and the actions that happened were considered speech and not conduct so therefore they could not charge him. They also stated that Mr. Cohen was just bringing out his passion towards politics which a lot of people do and didn’t try to start violence on purpose in public like the California side tried to say. 

My Opinion

I do not agree with the court’s decision not to charge Paul Cohen because even though it didn’t physically harm people, the subject of the war at the time was a very arguable topic between people. Many people thought that the government should have not been forcing people to join the draft and there was a lot of judgement upon this topic. In this case of Paul Cohen this use of expression was too accessible and not only offended many people all over the country but also spoke out against the government. Similar to this case there have been many times where people have spoken out against the government and have gotten into a lot of trouble from their actions. An example of this was the Sydney Street case.

Sydney Street was an African American Veteran who burned a American Flag in the streets in New York. In his case just like the one of Paul Cohen the court ruled that his actions that he committed were considered conduct and not speech. This case is very similar to the one of Mr.Cohen because their actions were both public, forms of speaking out against the government and disrupting the peacefulness in public. However in this case Sydney Street was charged with malicious mischief for willfully and unlawfully defiling, casting contempt upon, and burning an American flag. You might argue that this case was a little more severe than the Cohen vs California because a product that represents the government was burned but it still has the same basis.

The Cohen vs California case also had a lot to do with emotive speech which is defined as “language pertaining to word choice. Specific diction is used to evoke emotion in the reader”. Paul Cohen’s choice of words inflicted a lot of emotion between people and caused a lot of people to be offended. Because of the situation that he was wearing the clothing in, I believe that he should have been charged for a crime because of the effect that it had on other people. Another example of this is the Debs vs America Case.

A man by the name of Eugene Debs delivered a speech to a public group that went against the recruitment of soldiers to the war, which is exactly what Cohen was doing. He was indicted for violating the Espionage Act of 1917 for allegedly attempting to cause insubordination and refusal of duty in the US military. However in the end he was not charged because the court sympathized that he was just expressing free speech. If the Cohen case was ruled as speech and not conduct then I would have believed that he should not be charged but Cohen’s case is different in my mind because causing conduct is something that cannot be restricted such as speech and is more severe.

Also, during the case of Cohen the judges who were in charge of making the decision used something called Judicial Activism. Judicial Activism is a “philosophy whereby judges interpret existing laws and precedents loosely and interject their own values in court decisions”. Since the Cohen case was a precedent case the judges only used some prior free speech cases to make their decision but it was mostly based on their values and how they thought of the decision. I believe that the judges were more cautious in this case because it was the precedent that set the rules for the future.

If there would have been prior cases to this one, the final decision possibly would have been different because it would be more based on facts and laws and not values. The last example that relates to this case is Abrams vs United States where he was accused of printing leaflets and spreading them around that called for a strike against the war efforts in 1919. Abrams was charged for committing espionage against the government and speaking out against them. In my opinion this case was very similar to the one of Cohen because they were both spreading content that went against the government. 


I believe that Paul Cohen should have been charged in the Cohen vs California case because offensive speech to this level should not have been demonstrated in a public place, especially a courtroom. However I do think that people should be able to express their opinions but not to this extent. If the expression or speech shown by a person in a public place is aimed at disrupting the peace and offending many people like Paul Cohen did, they should be charged with a crime. The Cohen vs California case sent a precedent for offensive speech cases in the future because it set the rules of severity that people can express themselves in public cases.