What the Cohen Rule Means for Free Speech

The Cohen Rule is a principle of First Amendment law in the United States, establishing that the government cannot criminalize speech merely because it is considered offensive. This standard protects expression that, while potentially vulgar or upsetting, does not fall into specific, narrowly defined categories of unprotected speech. The rule affirms that the ability to convey a message, including its emotional intensity, is a component of free expression. It sets a high bar for what the government can censor, ensuring that public debate is not limited to only the most agreeable or politely phrased ideas.

The Originating Case

The rule emerged from the 1971 Supreme Court case Cohen v. California, a dispute rooted in the social and political turmoil of the Vietnam War era. In 1968, a 19-year-old named Paul Robert Cohen entered the Los Angeles County Courthouse wearing a jacket with the words “Fuck the Draft” printed on the back. His intent was to express the depth of his opposition to the ongoing war and the military draft. Cohen did not engage in any loud or disruptive behavior and walked through the courthouse corridors.

An officer arrested Cohen and charged him under a California statute that prohibited “maliciously and willfully disturb[ing] the peace or quiet of any neighborhood or person… by… offensive conduct.” Cohen was convicted and sentenced to 30 days in jail. The conviction was initially upheld by the California Court of Appeal, which reasoned that his act constituted “offensive conduct” likely to provoke a disturbance.

Cohen’s defense argued that his jacket was a form of symbolic speech protected by the First Amendment, intended to communicate his strong feelings about a matter of public concern. The state, in contrast, contended that the jacket was not speech but rather conduct that was justifiably punished to maintain order and civility in a public building.

The Supreme Court’s Reasoning

The Supreme Court, in a 5-4 decision, overturned Cohen’s conviction. The majority opinion, authored by Justice John Marshall Harlan, asserted that the conviction was based entirely on the communicative content of the words on the jacket, not on any disruptive action. The Court found no evidence that Cohen’s message incited violence or created a significant disturbance.

A central element of the Court’s analysis was the recognition that speech serves a dual function: it conveys not only ideas, which the Court termed the cognitive element, but also emotions, the emotive element. Justice Harlan argued that the emotional force of a message is often as important as its literal meaning. To prohibit certain words would be to risk suppressing the intensity and sincerity of the ideas they are meant to convey, giving the government undue power to sanitize public debate.

This reasoning was encapsulated in the line, “one man’s vulgarity is another’s lyric.” With this statement, the Court rejected the notion that the government could act as a censor, cleansing public discourse to make it palatable for the most sensitive individuals. The Court concluded that in a public space, those who might be offended by such a message could simply avert their eyes.

Scope and Limitations of the Rule

The Cohen Rule does not grant absolute protection to all forms of offensive speech. The Supreme Court has long recognized that certain categories of expression receive lesser or no protection under the First Amendment due to their potential to cause direct and immediate harm. Cohen’s message was protected because it did not fit into these categories.

Unprotected categories of speech include:

• Incitement to imminent lawless action, which refers to speech that is directed at inciting or producing immediate violence and is likely to do so.
• True threats, which are statements where the speaker means to communicate a serious expression of intent to commit an act of unlawful violence against a particular individual or group.
• Defamation, consisting of false statements of fact that harm someone’s reputation.
• Obscenity, as established by the Miller v. California test.
• Fighting words, which applies only to face-to-face insults that are likely to provoke an immediate violent response from the person being addressed.

Cohen’s jacket did not meet any of these standards, illustrating the rule’s function to protect speech that is merely offensive, not directly and imminently harmful.