COHEN v. CALIFORNIA
A 19-year-old department store worker expressed his opposition to the Vietnam War by wearing a jacket emblazoned with "FUCK THE DRAFT. STOP THE WAR" The young man, Paul Cohen, was charged under a California statute that prohibits "maliciously and willfully disturb[ing] the peace and quiet of any neighborhood or person [by] offensive conduct." Cohen was found guilty and sentenced to 30 days in jail.
Did California's statute, prohibiting the display of offensive messages such as "Fuck the Draft," violate freedom of expression as protected by the First Amendment?
Legal provision: Amendment 1: Speech, Press, and Assembly
Yes. In an opinion by Justice John Marshall Harlan, the Court reasoned that the expletive, while provocative, was not directed toward anyone; besides, there was no evidence that people in substantial numbers would be provoked into some kind of physical action by the words on his jacket. Harlan recognized that "one man's vulgarity is another's lyric." In doing so, the Court protected two elements of speech: the emotive (the expression of emotion) and the cognitive (the expression of ideas).
Argument of Melville B. Nimmer
Chief Justice Warren E. Burger: We will hear arguments next in Number 299, Cohen against California.
Mr. Nimmer you may proceed whenever you’re ready.
I might suggest to you that as in most cases, the Court’s 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.
Mr. Melville B. Nimmer: Thank you Your Honor.
Mr. Chief Justice and may it please the Court.
This case is of course here on appeal from a judgment of the Court of Appeals, State of California upon this Court’s order postponing jurisdiction pending hearing on the merits.
The Chief Justice’s suggestion I certainly will keep very brief this statement of facts, but fundamentally we do have here the appellant charged and convicted of engaging in tumultuous and offensive conduct in violation of the California disturbing the peace statute Penal Code Section 415.
Although there was a reversal upon the first level of appeal, appellant affirmed the superior of court, it was then certified to the Court of Appeals which vacated and affirmed the judgment.
California Supreme Court refused the hearing, four-to-three decision on that.
And of course fundamentally, may it please the Court 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.
Justice Harry A. Blackmun: What was the business?
Mr. Melville B. Nimmer: Mr. Justice Blackmun, he was -- although it’s not on the record the fact is he was called there as a witness in a case which he was not involved in himself.
While walking through that corridor he was wearing a jacket upon which were inscribed the words “Fuck the draft”, also were inscribed the words “Stop war” and several peace symbols.
When he entered the courtroom, he took off his jacket and held it folded.
When he left the courtroom, he was arrested for disturbing the peace, specifically engaging in tumultuous and offensive conduct.
Justice Potter Stewart: Now, inside the courtroom, you say he took the jacket off, and did he put it in a place where it was prominently on view?
Mr. Melville B. Nimmer: No Mr. Justice Stewart, he held it folded over his arm and it was not on view there.
Furthermore, the policeman who observed him walking through the corridor before he went into the courtroom -- this is in the record, requested the judge in courtroom to hold the young man in contempt.
The judge refused to hold the young man in contempt because there was nothing to be seen in the courtroom.
I shouldn’t say that, I don’t know what he would have done if he did see anything.
But there was nothing to be seen.
And then he left and at that point he was arrested.
Justice Potter Stewart: So the conviction rests basically upon his wearing it in the courtroom -- in the corridor of the building.
Mr. Melville B. Nimmer: Precisely Mr. Justice Stewart, yes.
Chief Justice Warren E. Burger: In this respect it’s no different is it from what it would be if he’d been picked up out on the street, in front of the building or in any other public place?
Mr. Melville B. Nimmer: Exactly Mr. Chief Justice, I think that’s the (Voice Overlap) --
Chief Justice Warren E. Burger: The courthouse atmosphere has nothing to do with it.
Mr. Melville B. Nimmer: I think it is not an issue in this case, yes Your Honor.
Justice Hugo L. Black: But wouldn’t you think that there are some things people couldn’t do in the courtroom that they could do in other places?
Mr. Melville B. Nimmer: Mr. Justice Black, I would think there are some things that in the courtroom itself, while court is in session would be improper consistent with the First Amendment.
Chief Justice Warren E. Burger: But you said he --
Mr. Melville B. Nimmer: I don’t think that arises in this case.
Chief Justice Warren E. Burger: You said he did not wear this jacket in the courtroom.
Mr. Melville B. Nimmer: That is correct Your Honor.
And I was making the distinction here hypothetically something had occurred in the courtroom while court was in session it might be a different case.
That is not that this case Your Honor.
Justice Hugo L. Black: (Voice Overlap) -- did it write at in the front door of the courtroom while the Court was in session?
Mr. Melville B. Nimmer: Your Honor as far as the record indicate --
Justice Hugo L. Black: Did he do it, I’m not talking now about what you're -- merits of your case.
Mr. Melville B. Nimmer: Yes.
Justice Hugo L. Black: But do you not think at a court it has something to say more than a word if it was -- the man was walking down the street?
Mr. Melville B. Nimmer: Mr. Justice Black, I think that when you get into the question of contempt, which that really raises this Court’s standard that has been adopted in numerous cases namely that there must be a showing of the speech creates a clear and present danger of interference with a judicial process would apply and conceivably and given facts where those words do appear during session of the court not merely in the physical courtroom but while court is in session.
Conceivably that would apply but that is not this case with all respect Your Honor.
So that this young man was arrested while walking in the corridor and I think it is vital to point out to the court that there --
Justice William J. Brennan: Which courthouse in Los Angeles?
Mr. Melville B. Nimmer: It is in the Los Angeles County Courthouse Mr. Justice Brennan.
Justice William J. Brennan: That's not the very large one is it?
Mr. Melville B. Nimmer: It is, yes it is a very large one.
Justice William J. Brennan: Isn’t that one the 100 courtrooms, is that --?
Mr. Melville B. Nimmer: Something like that Your Honor, yes.
It incidentally is not a courtroom where draft cases are tried, it’s not the federal court it’s the state courts.
Well, I think it’s important at the outset to point out to the court that there was no violence, no component of violence present.
It is stated in the settled statements signed by the trial judge that the appellant did not engage in violence, did not threaten violence, that no one observing him engaged in violence or threat in violence.
So the violence component is completely out and I suggest that that is terribly significant for the significance the broader significance of this case.
Pointing out as it does as it can do depending on this court’s decision the very vital distinction between dissent which may be offensive to people, some people may not like it but non violent dissent and violent dissent -- a distinction that all too often are younger -- members of the younger generation tend to forget.
They tend to equate violent dissent and dissent that may be regarded as objectionable or offensive.
It is terribly important we submit Your Honors that this Court may clear that distinction, that dissent by its very nature involves the right to be offensive if non-offensive dissent is almost a contradiction in terms.
Because if it’s not offensive it means you agree with it.
But on the other hand violent dissent is something quite different.
And this -- the facts this case point out precisely that distinction, yet the trial court, first of all, erroneously we submit quite clearly erroneously, rule that it was completely unnecessary to show any component of violence in connection with the statute.
And that set forth, I think at Appendix 19 where they said -- the trial judge said, “Simply if it’s offensive that’s enough.”
And we submit that that clearly is unconstitutional given the First and Fourteenth Amendment.
Beyond that the Court of Appeals when it came to rule in this case and affirmed the decision below was not prepared to go that far indicated that there wasn’t necessity for a violence component.
But it’s very interesting to note the way they handled that.
What they said was, first they quoted appellant’s position that there must be a likelihood of violence arising from offensive conduct.
And the courts -- the Court of Appeals, State Court of Appeals opinion at the beginning says, “That’s right.
We subscribe to that view.
There must be a likelihood of violence arising from the offensive conduct.”
But then on the course of the opinion they go on to say, “It’s sufficient if there’s a tendency to violence if a violent act might occur.”
And then they say, “This might occur” because a man walking with his wife and children seeing this words on the jacket “might emphasize”, it was my emphasis, might resort to violence to attack this man who was exhibiting this word that is found offensive.
Justice Byron R. White: Would it be your position that your client could have -- would’ve had a First Amendment right to say this words orally, face-to-face to any person in the hall outside the courtroom?
Mr. Melville B. Nimmer: Mr. Justice White I don’t think the distinction lies on whether it’s oral or written.
But if you are suggesting the distinction based upon the fighting words concept --
Justice Byron R. White: I’m not suggesting anything I just asked the question.
Mr. Melville B. Nimmer: What?
Justice Byron R. White: Would your position be the same?
Mr. Melville B. Nimmer: Yes.
If you use these precise words namely relating to the draft.
Justice Byron R. White: Yes.
To any person face-to-face in the hallway, do you think he’s got a First Amendment right to do that?
Mr. Melville B. Nimmer: Yes I do your Honor.
Justice Byron R. White: And if he didn’t there might be some trouble -- you'd -- might have some trouble in this case.
Mr. Melville B. Nimmer: I don’t offhand see a viable distinction between the written and the oral, yes.
Justice Byron R. White: Yes.
Mr. Melville B. Nimmer: But Your Honor, I think it’s terribly important to suggest, perhaps you were not suggesting, but it could suggest to me this line of fighting -- the fighting words concept taken from the Chaplinsky case decided by this Court some years ago.
Where this Court suggested that in certain circumstances, words may be regarded as fighting words because men will reasonably know that they will result in violence and hence that those words are outside of the First Amendment.
Justice Byron R. White: More a -- is your view of fighting words different than -- do you think fighting words are different than insulting words?
Mr. Melville B. Nimmer: No Your Honor.
That’s precisely my point I think they’re synonymous.
And hence, these are not fighting words because they’re -- well perhaps I should be more specific.
Insulting words, insulting the hearer, insulting the word -- the person to whom the words are addressed is what the basic concept of fighting words refers to, as in Chaplinsky, “dammed, racketeer and fascist.”
Here, there was no attack of the hearer.
There was an opposition verbal attack if you will on an institution, the selective service system but not as against any of the viewers of this side.
Hence, we submit this does not at all come under the Chaplinsky fighting words concept.
Chief Justice Warren E. Burger: Let’s go back to what Justice White was addressing himself to.
You have indicated that your case is the same situation as it would be if he walked through the courthouse chanting or shouting these words.
And let’s say that you would have a miscellany of people that might include members of Draft Boards, members of the American Legion, soldiers from the armed -- members of the armed forces, parents with young children, you suggest that this might not be fighting words in the context of that kind of an audience, potential audience?
Mr. Melville B. Nimmer: Mr. Chief Justice, first of all in terms of the fighting words I don’t see any likelihood to the facts constituting those fighting words.
But in any event, I think the fundamental point is it is the burden of the state to show that in the given circumstances that these were fighting words.
That is given the factual situation that you described with servicemen around and so on that it’s a factual burden on the state to show that in those particular circumstances there was a likelihood of violence.
No such showing was made in this case.
Beyond that, perhaps I should further elucidate on the possible distinction between oral and written.
It is certainly true that there maybe some non-speech interest that arise in the connection with an oral statement that may not arise with the written statement.
For example, you spoke of him chanting, well if there were a constant oral kind of communication that became disturbing then regardless of the content of the speech that might be grounds for the state moving in and stopping this.
So in that sense there can be a distinction between oral and verbal but I don’t make the distinction in terms of the intellectual content of what is said.
Well, the Court of Appeals then, the California State Court of Appeals attempted to defend the lower court decision on the grounds that there was a possibility.
It might have happened that there would be violence despite the fact that the settled statement clearly says, signed by the trial judge that there was no violence and no likelihood of violence either by the appellant or by anyone hostile to him or with him viewing him.
And so this was quite contrary to the facts of the record.
Beyond that, quite apart from that, the standard adopted by the Court of Appeals is quite improper in view of the carefully worked out doctrine that this Court has enunciated through the years about First Amendment.
Note the possible implications for example in cases like Edwards versus South Carolina, where Negro demonstrators peacefully present their views at the State House.
Now, one could certainly say there that it is possible given the southern atmosphere it is possible there might be someone in the audience, a White person observing, who might resort to violence, that’s possible.
But this Court has made very clear that that’s not enough of a standard.
The mere possibility, there must be a likelihood, a real likelihood and an imminence in order to justify abridging freedom of speech.
That standard was certainly not met here and there’s nothing in the record to reflect such a standard here.
Chief Justice Warren E. Burger: You seem to be, at least if I follow you.
What you’re really saying is that this is an absolute right under the First Amendment in the context of either speaking it as long as it is not shouted, speaking it or carrying a picket sign, or having it on a jacket in the corridor of the courthouse.
Mr. Melville B. Nimmer: Mr. Chief Justice it is not our position that because it happens to be profanity, automatically there is an absolute right, no Your Honor.
We certainly recognize that in given circumstances the issuance of profanity may cause a clear and present danger of a violent reaction and if that -- if those are the circumstances then the profanity can be prohibited.
It is also conceivable that in given circumstances the profanity will be used in an obscenity setting as this Court has defined obscenity.
Again, under this Court’s decision the First Amendment would not apply.
It is also possible the profanity or whatever is said maybe used in circumstances where the person had no right to be where he was although the Adderly doctrine and then again the mere fact that he is using profanity does not give him an absolute right to speak.
But in the situation where the various contexts that this Court has found justify not applying the First Amendment where those context do not arise as they do not arise here then we submit Your Honor that the mere fact that this happens to be profanity does not justify the state from coming in and stopping the statement.
We submit Your Honors that there are very serious and important First Amendment implications here that should be realized and I’d like at this point then to trace them.
Because having passed the point and I certainly would be happy to come back if any of the Court wishes on any of these various exclusionary grounds why the First Amendment does not apply.
Assuming that none of those are pertained and we submit they do not as set forth in the whole part one of our brief.
Going to part two of our brief, why is profanity itself worthy of protection?
Well, one really doesn’t have to put it in that context because the First Amendment says, “speech is protected.”
You don’t have to justify it on any other ground.
But let’s look for a moment at the policy reasons which underlie the First Amendment if we may and see why they do apply in the area of profanity, as well as elsewhere.
We know that one fundamental reason as Justice Brandeis pointed out in his famous Whitney Concurrence, one fundamental reason why free speech is important is because of its contribution to the democratic dialog.
A self-governing people can govern wisely only if they hear all material, all data from all sources.
And this Court made that point again most recently in the Red Lion case.
Chief Justice Warren E. Burger: Now what does this have to do with the communicating dialog or discussion of public issues?
Mr. Melville B. Nimmer: Your Honor ,I understand the argument can be made and perhaps you by implication are making it.
Why do they have to use these words?
Why couldn’t he simply said, “I hate the draft” and if put forward the democratic dialog equally as well?
And we have several fold answer to that. First of all, on a more superficial level if you will, if this appellant had used the more laundered form of expression.
If he had said, “I hate the draft”, then the self-governing people, the people who must make decisions based upon freedom of speech and what they hear from that freedom of speech would be somewhat less wise than they are.
Now, what do I mean by that?
I mean by that that the mere fact that this young man chose to choose a word which many people would no doubt find disagreeable and no doubt no question of that.
The mere fact that he chose to use that word is important data for the self-governing people to know, to know that he feels this deeply about this subject.
If they don’t -- if you use the laundered form of expression “I hate the draft” they would have been ignorant to a degree.
And as Dr. Meiklejohn said in his famous work, following the Brandeis Formula, the self-governing people must know -- have access to all material and all data.
Now if they didn’t know about his depth of feeling that was evidenced by this word or knowing that what are the consequences?
Well it -- they could be any one of the number.
Maybe the self-governing people decide that if that’s the attitude of the young people the penalty for the draft was made for avoiding the draft must be made more severe.
Or on the contrary it might be repeal the draft, or any one of the number of other possibilities.
The point is they know somewhat less by the state stepping in and changing that kind of expression.
A little more profoundly though, but --
Justice Thurgood Marshall: (Voice Overlap) Why did he take his jacket off when he went in the courtroom?
Mr. Melville B. Nimmer: Mr. Justice Marshall, he took the jacket off because he was wearing the jacket as one would ordinarily wear the jacket, he was somewhat chilly.
He knew that the sign was on there and he knew that this showed the depth of feeling of young man.
But he wasn't there to demonstrate or parade.
And that’s the point that the Court of Appeals makes in that course of their opinion, pardon me, says --
Justice Thurgood Marshall: I think you missed the import of my question.
Mr. Melville B. Nimmer: I’m sorry Your Honor.
Justice Thurgood Marshall: He was willing to do all this demonstrating but he wouldn’t want to do it in the courtroom.
Mr. Melville B. Nimmer: But Your Honor, he was not --
Justice Thurgood Marshall: Does that lead me to believe he knew exactly what he was doing?
Mr. Melville B. Nimmer: Your Honor, he was--
Justice Thurgood Marshall: That he knew better than to wear it in the courtroom.
Mr. Melville B. Nimmer: That he knew -- I didn’t hear the last.
Justice Thurgood Marshall: That he knew better than to wear it in the courtroom.
Mr. Melville B. Nimmer: Perhaps he knew it would be improper to wear it in the courtroom.
I have never questioned him on that and there’s nothing in the record on that.
I don’t know.
Justice Thurgood Marshall: But you put emphasis that he folded it up.
Mr. Melville B. Nimmer: Yes indeed.
Justice Thurgood Marshall: But he still has the right to parade around the courthouse halls with him knowing that that building has nothing to do with the draft, in any form or fashion, am I right?
Mr. Melville B. Nimmer: You’re quite right Your Honor.
Justice Thurgood Marshall: You emphasized that.
Mr. Melville B. Nimmer: Yes Your Honor.
Justice Thurgood Marshall: And my question is why?
Mr. Melville B. Nimmer: Your question is what --
Justice Thurgood Marshall: Why did you emphasize that?
Mr. Melville B. Nimmer: Because I want to make the point that this does not get into the area of possible contempt of court.
This is an ordinary free -- exercise in freedom of expression.
Certainly, one is not limited in one’s freedom of expression to expressing --
Justice Thurgood Marshall: But could he have stepped on the court hallways and yelled those words?
Mr. Melville B. Nimmer: Certainly not.
That would have been highly improper Your Honor.
But that raises another non-speech element namely --
Justice Thurgood Marshall: But the fact that he has it placed on his jacket we can’t tell whether that’s allowed or why can't you?
Mr. Melville B. Nimmer: Well Your Honor, it was on his jacket, which meant that a person if he wishes to could see it on his jacket, but the person was not forced to continue to observe that as in terms of a loud noise one can’t help but hear it.
Justice Thurgood Marshall: (Voice Overlap) somebody was walking up the hall directly behind him couldn’t help from seeing it.
Mr. Melville B. Nimmer: For the moment but there -- but for --
Justice Thurgood Marshall: Well, I mean obviously that’s why he did it.
Mr. Melville B. Nimmer: Yes Your Honor.
Justice Thurgood Marshall: You mean he’d -- he didn’t want people to see it?
Mr. Melville B. Nimmer: No.
And I’m certainly not stating that at all.
Quite definitely he did want to pass that message, but it’s a somewhat different question, one, what his motive was in wearing it and in part it was to convey this message although he was not parading or picketing or anything of the sort.
He was making his way to the courtroom and then made his way back.
But he did want people to see this.
On the other hand, it’s a different question to conclude whether or not people have to see it for any considerable period of time and we respectfully suggest that was not necessary in the circumstances.
It is true that some people momentarily probably couldn’t avoid seeing it.
But there was no continuing requirement at all and that gets to this captive audience doctrine, it was of the kind of fleeting contact as one has, if one walks through a Hyde park type area where you may hear fleetingly offensive sounds but they are no more than fleeting.
Well, I started to get to what I -- if I may, -- what I think is the more profound reason why this Court must recognize that the First Amendment goes not only to offensive content.
And certainly this Court has made clear over and over again that no matter how offensive the idea conveyed its still is protected.
The writings of Adolf Hitler and Joseph Stalin certainly are far more offensive to many people than the word before this Court and this case that appears in 7 out of 10 of the best selling works of 1969, as indicated in the appendix of our brief.
Certainly, offensiveness per se does not derogate from the right to speak under the First Amendment.
But then the question comes back what about the form of the offense?
If the offensiveness comes in form rather than in substance, and I have made one point on that knowing the depth of the feeling, this is data that the public is entitled to know.
There’s a more profound point if I may and that is, linguists tell us that language performs two functions, there is the emotive content of the language and there is the intellectual content of language and that these intersperse.
That is the intellectual content is that which carries the message per se.
The emotive content of language is that which persuades we are all human beings, we are all moved to a degree by emotional considerations, as well as by intellectual considerations.
And then emotive content is also important.
Now we get to what the First Amendment is all about.
And what it is all about of course is competition in the marketplace of ideas, what ideas are going to prevail.
We subscribe to the democratic faith that the ideas that prevail by a majority are the ideas which should be followed.
But in order for that system to work, it’s important that the state not step in and try to censor either emotive content or intellectual content because depending on the emotive content, particular emotive content it will appeal, the message will appeal to various groups of citizens.
And by determining what the emotive -- by censoring the emotive content even if not the intellectual content, the state is thereby enabled to a great degree to determine what group will buy this idea, to what group this idea will appeal.
And hence, ultimately we’ll be able to determine what ideas prevail in the competition of the market.
And so for that reason we submit to the court respectfully that emotive content just as much as intellectual content or to put it on other way that the four offensiveness of form no less than offensiveness of substance must be preserved by the First Amendment if the First Amendment is to be meaningful.
Now, I should like to if I may with the Court’s permission point out one other aspect.
And that has to do with this hostile audience veto that was referred to a little bit in the last case.
This is another element that comes into play in this case.
The court could decide the decision here without deciding that.
We submit it would be both proper and desirable for the court to get into this issue.
What that has to do with is the Court of Appeals’ decision saying there was a likelihood of violence not from those who were followers of the defendant here but from those who were hostile to what he had to say, they might resort to violence.
And the question is posed even if there was such a likelihood or even if a mere tendency is a sufficient standard, is it enough to put down the speaker because those who dislike what he says may resort to violence.
As Professor Chasey (ph) said, as quoted more accurately in my brief, but does a man have to -- can a man be arrested because his neighbors don’t have enough self-control to stop themselves when they see -- when they hear something or read something they don’t like.
We suggest that the time has come when this Court should make very clear as it has in part in Edwards and in Cox that a hostile audience at least if the police can control the hostile audience is not sufficient to stop the speaker.
This becomes a very current issue on college campuses today where many members of the Government and other established people cannot go on campus because the college audiences are sufficiently hostile so that they attempt by sometimes by violent acts to stop the speaker.
This is wrong.
This is contrary to the First Amendment and this is the time for this Court to say so.
There was a case, a lower court case cited in our brief in Stacy versus Williams in which precisely that issue pertaining to the college campus was decided by a Federal District Court in Mississippi, overruling a state regulation stating that if -- that a speaker might not come on a college campus, if there is a likelihood that the students will resort to violence.
The Court said “Not so.
The police must put down the mob, not the speaker.”
Well that too is involved in this case and we submit that this is an opportunity for this Court to make clear the nature of free speech for students, as well as for others.
With the Court’s permission, I should like to reserve the remainder of my time for rebuttal.
Justice Harry A. Blackmun: Mr. Nimmer, before you sit down may I ask for a comment because you haven’t made one on the Bushman case in California since this one was decided.
Mr. Melville B. Nimmer: Yes Your Honor, several points if I may Mr. Justice Blackmun.
First of all it’s to be noted that the Bushman case further construed by the California Supreme Court, the very statute we have here, but it occurred after the decision by the Court of Appeals here and after the California Supreme Court refused to hear our case then the Bushman case per -- Mr. Chief Justice Treanor construed Section 415 and the offensive conduct.
Now that construction is somewhat ambiguous it seems to me because part of the opinion speaks of the requirement of a clear and present danger that offensive conduct will produce violence.
Elsewhere, the opinion speaks of a tendency to produce violence.
And so on the very issue I have suggested I think there is some ambiguity.
Beyond that it’s interesting to note that the Supreme Court opinion in Bushman cites this case, Cohen, as standing for the proposition that there was a likelihood of violence here.
Well, there is absolutely nothing in the record to support that and -- to the contrary there is in the settled statement, page 20 of the appendix, a statement directly countering that.
Justice Harry A. Blackmun: Do you feel that the California Court in Bushman disapproved of the holding of the Court of Appeals in the present case?
Mr. Melville B. Nimmer: Your Honor I have to conclude that the California Supreme Court approved the holding because they cited apparently with approval the Cohen case as standing for the correct proposition namely that there must be a likelihood of violence in order to justify convicting a speaker for the use of words under the Offensive Conduct, Section 415.
Justice Harry A. Blackmun: And my next question is, do you feel that the Bushman construction of the statute meets federal constitutional standards?
Mr. Melville B. Nimmer: Your Honor, I think it comes a lot closer to meeting it than does the Court of Appeals opinion in this case.
I would still suggest with respect Your Honor that it does not meet federal standards for several reasons.
First of all because it is ambiguous as I say on the question of whether on the one hand there must be a clear and present danger of violence arising from the words which constitute offensive conduct or whether there need merely be a tendency, that's one point.
Second point is, that the California Supreme Court in Bushman in no way goes into this hostile audience doctrine indicating that the statute would not apply if the likelihood of violence arises from a hostile audience.
And indeed, the California Supreme Court in People versus Davis, which is cited in appellee’s brief took the contrary position, not on the same statute but on anti-riot statute saying that “even if the danger comes from a hostile audience that’s still enough to abridge the speech.”
So the suggestion is that the California Supreme Court does not recognize that doctrine.
Justice Harry A. Blackmun: Then you would see no point in our remanding this case for reconsideration in the light of Bushman?
Mr. Melville B. Nimmer: I certainly do not Your Honor.
First of all of course it would go back to the Court of Appeals and the Court of Appeals would look at the Bushman opinion and see the California Supreme Court citation of Cohen as having been correctly decided and there would be nothing further for them to do but reaffirm.
And then perhaps ultimately it would come back here again.
It would simply be a delay if the Court is of the view that there were improper standards applied by the lower courts in California.
Justice Byron R. White: Mr. Nimmer, I take it from your earlier remarks that you think the situation might be different if he wore his jacket in the courtroom?
Mr. Melville B. Nimmer: Your Honor, if he wore the jacket in the courtroom during courtroom proceedings --
Justice Byron R. White: Yes, well why would that -- why would wearing this sign on his back in the courtroom be any more vulnerable to attack?
Mr. Melville B. Nimmer: Your Honor, I should further qualify that.
I could then see the possibility of a charge on contempt.
Justice Byron R. White: Why?
Mr. Melville B. Nimmer: I would still say it would be a proper to charge him under this statute.
Justice Byron R. White: Why, why?
Mr. Melville B. Nimmer: Well, I’m only looking at the possibility.
There I could see the possibility of the court concluding that the use of that word in the presence of the judge so interfering with the decorum of the courtroom that it did create a clear and present danger of --
Justice Byron R. White: Of what?
Mr. Melville B. Nimmer: Interfering with justice.
Now, I’m only perhaps taking a devil’s advocate there.
I can see that as a possibility but even if it is a possibility it is not this case.
Justice Byron R. White: You think it would be different if in the courtroom the sign on his jacket was, “I hate the draft”?
Mr. Melville B. Nimmer: Perhaps not Your Honor.
The courtroom is no place to go around making speeches either written or verbal during trial proceedings.
Your Honor, does that mean that my time is up and I don’t have any rebuttal time?
Chief Justice Warren E. Burger: It is.
We’ll see if we can do something about that.
Mr. Melville B. Nimmer: Thank you your Honor.
Chief Justice Warren E. Burger: Mr. Sauer.
Argument of Michael T. Sauer
Mr. Michael T. Sauer: Mr. Justice and may it please the Court.
As an issue developed appellants opening argument I don’t believe there’s any difference whether the appellant wore it in a courtroom or in a corridor.
If the defendant were protesting the decisions of this Court and carried a similar sign, and walked across the plaza up the marble staircase and down the corridor here, I don’t think it’d be any different if he stopped and took his jacket off at the corridor or if he entered the courtroom here with the same type of sign.
I believe the same violation would have occurred that that would have been engaging an offensive conduct.
Or if the man wore it on a public street I would say the same type of conviction should stand.
Justice John M. Harlan: Well, is it different if he goes on in the courtroom, what goes on in the corridor, sure, you can't read newspapers in the courtroom but certainly when outside the courtroom if you wanted.
Mr. Michael T. Sauer: That’s true Your Honor but if the man were yelling the words -- if the man spoke them in here just to say to someone else or spoke them out in the hallway I would still think it would be a violation.
If he just said it to someone next to him who might be offended by the terms and might react to the statement made to him.
Whether the man folded it over his jacket, we don’t know.
It says he went in the courtroom but there is no showing whether the court was in session or somebody walked in here at quarter to one when the court is still in recess and had the sign.
And none of Your Honors were on the bench and no one saw the sign.
I would say it would still be a violation then.
Say, he entered the courtroom prior to opening it would still be a --
Chief Justice Warren E. Burger: You’re speaking of it as a violation independent of what it might it be with as a contempt of the court or an interference with judicial proceedings?
Mr. Michael T. Sauer: Yes Your Honor.
Chief Justice Warren E. Burger: It might be a violation of the statute and the contempt, I take it.
Mr. Michael T. Sauer: I would agree, yes that would be our argument.
Say the man was sitting here and none of Your Honors could see him.
Everybody else in the courtroom, say, might be offended but I could be having a sign right now and none of you could see my back, and the argument goes on and say I wouldn’t be held in contempt.
Yet I would still say it would be a violation because other people in the place might be offended by what is going on.
Justice Potter Stewart: The violation is just what?
What was he convicted of violating, a statute that says --?
Mr. Michael T. Sauer: Engaging in offensive --
Justice Potter Stewart: That person then and there being present, he then and there engaged in tumultuous and offensive conduct, is that --?
Mr. Michael T. Sauer: Correct Your Honor.
Justice Potter Stewart: Are those the words we’re dealing with here?
Mr. Michael T. Sauer: Yes.
Justice Potter Stewart: Tumultuous and offensive conduct with other people present, is that it?
Mr. Michael T. Sauer: Right, that’s correct.
Now the statute in California says, “tumultuous or” as pleaded in the complaint is “tumultuous and”, but I believe the opinion shows that we never contented that it was a tumultuous, I believe we conceded it was not tumultuous, barely offensive.
Justice Potter Stewart: There was offensive conduct.
Mr. Michael T. Sauer: Correct.
Conduct by displaying the jacket.
Justice Potter Stewart: And the conduct was what, walking or --?
Mr. Michael T. Sauer: By wearing the jacket and walking in the corridor.
Justice Potter Stewart: Well, wearing it -- was it, the conduct was precisely what?
Mr. Michael T. Sauer: Displaying the sign on the jacket by the fact he was walking with the sign displayed on his jacket.
Justice Potter Stewart: And the walking wasn't offensive conduct, just the walking was it?
Mr. Michael T. Sauer: Walking with the sign, merely walking, no.
Justice Potter Stewart: And so what was the conduct?
Mr. Michael T. Sauer: Displaying the sign.
Justice Potter Stewart: Displaying?
Mr. Michael T. Sauer: Yes, his conduct of displaying the sign.
Justice Potter Stewart: The words?
Mr. Michael T. Sauer: Yes, where other persons were present.
Justice Potter Stewart: That were painted on or sown on or whatever it was on the jacket.
Mr. Michael T. Sauer: Right, they were painted on.
Justice Potter Stewart: The jacket?
Mr. Michael T. Sauer: Correct.
That is our contention.
Justice Potter Stewart: The display of the words?
Mr. Michael T. Sauer: Correct.
Unknown Speaker: (Inaudible)
Mr. Michael T. Sauer: The record is devoid Your Honor.
All I could say is the building is the main courthouse in Los Angeles County that has nine storeys.
He was on the seventh storey, which it means you can enter on the first, the second, or the fourth.
So if he entered the closest floor up, he would’ve entered the fourth, he would’ve had to walk down half a block and then ridden up three floors.
So, unless he suddenly produced the jacket out of nowhere he had to walk at least half a block.
Justice Thurgood Marshall: How many people were in the hallway?
Mr. Michael T. Sauer: The record doesn’t say.
Division 20 in the city of Los Angeles is the main master calendar for all misdemeanors.
On a normal day there’ll probably at any hour of the day there’s probably 200 people there but we do not know how many were present at this time.
Justice Thurgood Marshall: Well, wouldn’t that be helpful to know how many were there?
Mr. Michael T. Sauer: Unfortunately, the record as it came up does not go into that.
Apparently, there were at least three people present.
Justice Thurgood Marshall: Suppose this same man had used those same words to one person in the corridor in a very quiet voice, would that have violated the statute?
Mr. Michael T. Sauer: If he said it to someone who doesn’t accept those words, yes, I would say that might be offensive conduct.
There is another part of the statute that says --
Justice Thurgood Marshall: Would it violate the statute?
Mr. Michael T. Sauer: I would say yes, Mr. Justice Marshall.
Justice Thurgood Marshall: But why?
Justice Potter Stewart: It is the persons then and there are present under the statute.
Mr. Michael T. Sauer: Well, one person’s peace could be --
Justice Potter Stewart: I just read in your brief as to what the statute says.
Mr. Michael T. Sauer: Well, “disturb the peace of any neighborhood or person” on page seven of our brief it could be one person’s peace could be disturbed.
We quote the statute on page seven Mr. Justice Stewart.
Justice Thurgood Marshall: What is there in the record, in testimony that shows that these words were offensive to any person in that building at that time?
Mr. Michael T. Sauer: There’s nothing in the record Mr. Justice Marshall.
We just said the effect on the average person.
As I go back and read Chaplinsky there’s no showing that Major Browning (ph) when the man yelled at him “You damn fascist, you damn racketeer” was offended by the statement.
There’s no showing that Major Bowering was going to react against them.
Justice Thurgood Marshall: But who in the building was interested in the draft, does the record show?
Mr. Michael T. Sauer: There’s no showing.
Even appellant admits the man was there because just citizens who would be present --
Justice Thurgood Marshall: Well, my great difficulty is as to what’s the difference between the man whispering something in this form up to somebody and wearing the jacket that so far this record shows only one person saw.
Mr. Michael T. Sauer: No.
I believe three people saw it.
There was a Sergeant Splaun (ph), there was someone named Alexander and one other person I believe saw it.
Justice Harry A. Blackmun: Mr. Sauer, may I read from the settled statement on appeal.
Sergeant Schuler and Officer Alexander corroborated Sergeant Shular (ph) testimony as the defendant’s presence in the corridor, his wearing of the jacket, his entering the courtroom and as to the presence in the corridor of women and children.
Isn’t that the answer?
Mr. Michael T. Sauer: Correct Mr. Justice Blackmun, yes.
I said the record shows that there were other individuals present, as well as three specifically named individuals.
There were women and children present in the corridors.
Justice Thurgood Marshall: Is that what you take --
Justice Harry A. Blackmun: He was in the courthouse with the purpose here -- contested by him in the trial?
Mr. Michael T. Sauer: Yes I believe --
Justice Harry A. Blackmun: Under subpoena?
Mr. Michael T. Sauer: I believe is he was to be a defense witness in another case as I understand --
Justice Harry A. Blackmun: (Inaudible) whether he was in the courthouse pursuant to a subpoena?
Mr. Michael T. Sauer: The record doesn’t show but I would stipulate that he was there as a defense witness in another case which this has no bearing on.
Justice Thurgood Marshall: But there’s nothing in the record to show when he came in the building, how he came in, how long he was there or how many people saw him.
The only thing in the record is that two people saw him and testified that there were women and children who might have seen him.
Mr. Michael T. Sauer: No, three people saw him and they testified that they had seen it and that there were women and children present in the corridor.
There were at least three people specifically named that saw him.
Justice Thurgood Marshall: They might not have seen it.
Mr. Michael T. Sauer: No the three specifically named people did see him.
Justice Thurgood Marshall: Did they say it was offensive to them?
Mr. Michael T. Sauer: No.
There’s no evidence of that.
I believe you have to -- if you take offensive as defined in Chaplinsky, you have to apply it as what the average man would think.
And I would say these words would be offensive to the average man.
Justice Thurgood Marshall: What do you mean, one word, don't you?
But suppose he had on his jacket “I don’t like the draft,” no --
Mr. Michael T. Sauer: Then I don’t believe we --
Justice Thurgood Marshall: No, “I dislike the draft”.
Mr. Michael T. Sauer: Then I doubt if we would be here Mr. Justice Marshall.
Justice Thurgood Marshall: So it’s the word isn’t it?
Mr. Michael T. Sauer: Yes.
Justice Thurgood Marshall: Isn’t that all you have?
Mr. Michael T. Sauer: Or a word yes, I think collectively throughout the cases referred to the three words.
Justice Thurgood Marshall: Yes, absolutely.
Mr. Michael T. Sauer: The terms “offensive” have been upheld by this Court in the past.
In Feiner versus New York the defendant was charged among other thing with using offensive language conduct or behavior, acting in a manner so as to be offensive to others.
In Chaplinsky, the man was charged with using offensive word.
This word has stood the test of time in the past.
In other cases, in Beauharnais and Roth in discussing an area of obscene speech, if these words are determined of the obscene speech, the Court, it was said, certainly no one would contend that obscene speech may be punished only upon a showing of circumstances of a clear and present danger.
In Roth and in Beauharnais, it seemed to indicate that if someone used obscene speech in public that would be a sufficient violation.
When the court agreed to take the case, the question of jurisdiction was postponed.
One of the arguments that people made in their brief would be that this is merely the state interpretation of its own statute.
The trial court found the man guilty as charged with -- the only two words alleged in the complaint.
The California upheld Department of Superior Court held that term “tumultuous or offensive” they said the only violation you could have would be “tumultuous and offensive”.
And they reversed the case twice.
When they certified it to the California Court of Appeal, they did it to settle an important question of statutory interpretation as how is the phrase tumultuous or offensive to be read.
The California Court of Appeal read it based on the facts and the interpretation of the statute as to mean tumultuous or offensive and that any one of those violations in and of itself would be sufficient.
Justice Potter Stewart: I don’t have so much problem with the tumultuous or offensive as I do with the -- what the conduct is here.
Mr. Michael T. Sauer: The conduct is wearing the jacket displaying the sign.
Justice Potter Stewart: Just displaying the words.
That's all the conduct there is, isn’t it?
Mr. Michael T. Sauer: Yes, correct.
If the man had yelled the word Mr. Justice Stewart that part of the statute is not before it, but it says “if he yells it in a loud and boisterous manner --”
Justice Potter Stewart: Well, we’re not talking about decibels here at all.
Mr. Michael T. Sauer: Okay.
Justice Potter Stewart: That would be quite a different case.
This is displaying of message and that’s only conduct involved, isn’t it?
Mr. Michael T. Sauer: That’s correct.
Displaying the term that we would contend is not accepted for public display.
The fact that it appears in Best Seller’s I don’t believe is sufficient reason to allow it to be displayed in public.
There are people who may wish to read a Best Seller.
That is their choice.
But here individuals were a captive audience, they were -- with the words foisted upon them.
They could not avoid it other than to close their eyes but they had the right to be in the corridor also.
If it then be --
Justice Potter Stewart: If these words have been “Nuts to the draft”, would this case have here?
Mr. Michael T. Sauer: No, I do not believe so.
Justice Potter Stewart: So it’s not the -- it narrows down to this one four-letter word, is that it?
Mr. Michael T. Sauer: That is correct.
A word that we contend and the Court of Appeals said is not generally accepted for public display.
I would say if the persons were in front of the White House picketing the president using this word in relation to the president, or picketing this Court with the word in relation to the Court it would still be offensive conduct of words that are not accepted at this time.
Justice Thurgood Marshall: Does everybody in Los Angeles walking down the streets who might use that word subject to be arrested?
Mr. Michael T. Sauer: If they were displaying the word, we would consider that to be offensive conduct.
Justice Thurgood Marshall: If you got jail big enough.
Mr. Michael T. Sauer: Well, in six-and-a-half years at the City Attorney’s office Mr. Justice Marshall, this is the only time I’ve seen a case of this type come up, and which has been publicly displayed.
I’m not saying the word isn’t used but written in public is something else.
People yelling it -- that we have had, there have been, say numerous convictions where someone has yelled it.
But this is the first case of this instance.
Justice John M. Harlan: What sentence this youngster get?
Mr. Michael T. Sauer: I believe he got 30 days in jail Mr. Justice Harlan.
The arguments been made that we should have a democratic dialog.
I agree that, conversations in part in the streets are to be used for public arguments.
I don’t believe this type of language has to be subjected upon an unwilling public.
I think in the past we’ve seen candidates for public office who have been subjected to offensive signs, language being yelled at them, things that at the moment are not accepted by all the public.
I don’t believe this is the same as an individual in Edwards or some of the (Inaudible) cases from the south.
The fact that some white individuals may have objected to the fact these people were peacefully protesting.
Because there’s no showing that they displayed such signs.
Many of them saying “freedom songs” and engaged in say conduct like that.
But in this case the man has displayed a sign that the State of California has found to be offensive by its decisions.
Apparently, the decision was approved by the California Supreme Court in Bushman in relation to the question asked by Mr. Justice Blackmun.
It is interesting that the Bushman case originally came to this Court and was denied a writ of certiorari, and then went to the California Supreme Court where they granted a writ of habeas corpus and ruled where they did approving apparently the decision of the lower court.
We believe that this is verbal communication that is not permitted again I would go back to the Chaplinsky case where it's no showing that Major Browning (ph) who was yelled was going to react to these words in any way.
The man yelled at him and this Court approved the words offensive conduct in relation to the lower court decision.
Justice Harry A. Blackmun: Mr. Sauer let me see if I understand your comment about Bushman.
You feel that the California Supreme Court in Bushman approved what was said in Cohen in characterization of the statute under consideration?
Mr. Michael T. Sauer: Yes Mr. Justice Blackmun.
I believe that would be the only way -- one, in the fact that California Supreme Court denied a hearing in Cohen, and two by the fact they cited with approval what offensive conduct is.
Justice Hugo L. Black: Nothing inconsistent in the two opinions in your judgment?
Mr. Michael T. Sauer: No.
But going into offensive is something that is likely or would tend to cause others to violence or if the individual actually engages in violent conduct on his own.
I don’t believe there is any discrepancy between the two court’s opinions.
Because this very same Court, the same seven justices who ruled in Bushman unanimously were the same seven by four-to-three who denied a hearing in Cohen and by the fact that they -- one of the dissenters in Cohen, Chief Justice Treanor, the retired Chief Justice Treanor wrote the opinion in Bushman so I would have to assume that they have been approving of Cohen.
We would just repeat as I had cited in our brief and going back to Chaplinsky it’s been well urged, paraphrased in that that words of these type are no essential part of any exposition of ideas and sight social value as to step to the truth that any benefit that may be (Inaudible) was clearly outweighed by the social interest in order and morality.
We believe the conviction the California Court of Appeal is valid and that the judgment should stand.
Thank you Mr. Chief Justice Burger.
Chief Justice Warren E. Burger: Mr. Sauer.
Mr. Nimmer your time is exhausted but -- in light of the fact the questions came after, you had undertaken to submit, we’ll give you two minutes for rebuttal.
Rebuttal of Melville B. Nimmer
Mr. Melville B. Nimmer: Thank you very much Your Honor.
I would like to make a few comments simply about taking off from Mr. Sauer said about the number of arrest that have occurred.
Actually if you look at the amicus brief of the ACLU of Northern California in this case there is a suggestion there are numerous arrests all over the country all the time for this kind of offense, and particularly relating to minority groups where no charge is made against the minority person other than that he engaged -- he uttered something that it was offensive.
Now sometimes it may be fighting words but not necessarily.
Sometimes that is -- it may be a preliminary to violence.
But even if it’s not this kind of thing occurs and that gets me with the final point is, the point made by the ACLU amicus brief of Northern California, where they suggest that this Court may decide this case under a narrow grounds.
And of course we agree on the narrow grounds suggested by them that the -- and I won’t repeat them because of lack of time.
But may I close Your Honors with the suggestion that if this case is decided for our side on narrow grounds, what it will mean is it will continue to be the fact that hundreds and thousands of people all over the country are arrested because they simply have used a word that others find offensive in this profanity area where there is no likelihood of violence.
We suggest Your Honors that just as the basic underlying theory of the doctrine of over breadth in order to avoid a chilling effect, you decide a case even though you could decide it more narrowly in order to avoid the chilling effect on those not before the court then it would be particularly appropriate for this Court in this decision, if it does decide that there should be a reversal to go further and make clear that the language of profanity is not outside the scope of the First Amendment, simply because it’s offensive.
It may be outside in given circumstances where it is a preliminary to violence or where there are other specific other grounds.
But simply because it is offensive it should be made clear this is within the First Amendment.
And one other point, final point on the hostile audience doctrine, again to make clear to college students that there is a distinction between engaging in dissent in such a way that you don’t like it and engaging in dissent as to put down the speaker, that too is outside the bounds of the First Amendment and this Court could make that clear.
Thank you Your Honors.
Chief Justice Warren E. Burger: Thank you Mr. Nimmer.
Thank you Mr. Sauer.
The case is submitted.