June 7: Fuck the Draft

The Supreme Court determined by a 5-4 vote on this date in 1971 that 19-year-old Paul Cohen’s wearing of a jacket embellished with the words, “Fuck the Draft,” was protected by the First and Fourteenth Amendments. “[O]ne man’s vulgarity is another’s lyric,” wrote Justice John Marshall Harlan II. Cohen had been convicted in 1968 of disturbing the peace and sentenced to 30 days in jail simply for wearing the jacket in a corridor of a Los Angeles courthouse.

You can listen to the oral argument before the Supreme Court at this link. The excerpt opens with Chief Justice Warren Burger, concerned that the jacket’s offending message not be uttered before the Court, urging Cohen’s attorney, Melville Nimmer, to move quickly past the facts of the case to his legal argument.

“Mr. Nimmer, you may proceed whenever you’re ready. I might suggest to you that . . . the Court is thoroughly familiar with the factual setting of this case and it will not be necessary for you, I’m sure, to dwell on the facts.”

Nimmer’s response has become infamous: “At the Chief Justice’s suggestion, I certainly will keep very brief the statement of facts,” and then proceeded to explain that Cohen had been “convicted of engaging in tumultuous and offensive conduct, in violation of the California Disturbing the Peace Statute . . . . What this young man did “was to walk through a courthouse corridor in Los Angeles County on his way to a courtroom where he had some business . . . . While walking through that corridor he was wearing a jacket upon which were inscribed the words ‘Fuck the Draft.’”

“[A]bsent a more particularized and compelling reason for its actions, the State may not, consistently with the First and Fourteenth Amendments, make the simple public display here involved of this single four-letter expletive a criminal offense.” —John Marshall Harlan II