The F-Bomb

Episode Notes

Transcript

Make No Law: The First Amendment Podcast

The F-Bomb

11/29/2018

Ken White: Hi everyone. It’s Ken here. This episode deals with the F word and we use it a lot. So, please exercise listener discretion.

[Music]

On April 26, 1968, Paul Robert Cohen walks down the corridor of the Los Angeles County Courthouse on the corner of Grand and 1st. He stopped outside Department 20, which in those days was a Municipal Court courtroom, hearing misdemeanors and minor crimes.

He took off his jacket and folded it under his arm and he went into the courtroom to watch what was going on. He was a witness in a case that was going forward. While he was in there, several officers of the Los Angeles Police Department entered the courtroom and asked the judge to hold Mr. Cohen in contempt. The judge refused. Cohen hadn’t done anything in his court, but when Cohen stepped out, he was arrested by the police officers.

Paul Robert Cohen hadn’t said anything inflammatory, he hadn’t threatened anyone, he hadn’t made a speech or held a sign, nobody reacted at him with a threat or violence. But that day, in that courthouse corridor, he was wearing a jacket. That jacket.

It had a slogan, “Stop the War”. It had two peace signs and it had another slogan.

Ralphie: I said THE word, the big one, the queen-mother of dirty words, the ‘F-dash-dash-dash’ word.

Mr. Parker: What did you say?

Ralphie: Uh… um…

Mr. Parker: That’s… what I thought you said.

Ken White: Cohen’s jacket said in big bold letters, “Fuck the Draft”.

This in April 1968 was a cause for tumult, as every judge to touch the case carefully noted, there were women and children present. The word “Fuck” was still taboo; dropping it in public was still like dropping a bomb.

[Bomb Explodes]

Just 20 years before the literary bomb thrower Norman Mailer wrote a searing story about how a war dehumanizes us, called ‘The Naked and the Dead’. He covered the blood and the mud and the shit and the senseless death, but he didn’t say “fuck”. At the request of his publishers, he said “fug”, F-U-G.

His characters have been in the novel saying fug this and fug that and that fugging thing over there. By 1968, people were starting to ask questions about whether that made sense. They were starting to ask, why can some words be used and not others? What makes one word worse than another?

Here’s infamous and fearless comic, Lenny Bruce.

Lenny Bruce: I would like an honest equation from any, at least grammar school graduate. Is the word “son of a bitch” less obscene to you than “motherfucker”? Really? Is it the fact that a Catholic President called all businessmen son of a bitches and a Jewish comic relates motherfucker? If you’re interested in the meaning of obscenity, I’m less obscene than the president. If the word “motherfucker” stimulates you sexually, you’re in a lot of trouble.

Ken White: Paul Robert Cohen was convicted of disturbing the peace for wearing his “Fuck the Draft” jacket in a courthouse. His case wound up telling us two things. First, you do have a First Amendment right to say “fuck”; and second, when you are in front of the Supreme Court, you really should.

I am Ken White, and this is Make No Law: The First Amendment Podcast from popehat.com, brought to you on the Legal Talk Network.

This is Episode 9, The F-Bomb.

[Music]

(00:04:57)

Ken White: Cohen’s case wasn’t complicated. It was straightforward. He was wearing a jacket that said “Fuck the Draft” and he admitted he wore it deliberately to express how he and his friends felt about the draft and the Vietnam War. He was convicted under California Penal Code Section 415, which made it a misdemeanor to maliciously and willfully disturb the peace or quiet of any neighborhood or any person by offensive conduct.

He agreed to a bench trial and was convicted and sentenced to 30 days in jail. Before the California Court of Appeal, he argued two key things. First, that a mere vulgar word can’t be disturbing the peace under California Statute. And second, that it violated his First Amendment rights to convict him simply for using the word “Fuck”.

The Court of Appeal rejected both arguments. First, it said that Cohen’s jacket was — and I’m quoting here, “below the minimum standard of propriety and the accepted norm of public behavior.”

The court said that women and children were present, and the word he used is not used to espouse a philosophy and would vex and annoy his audience. Therefore, the court said it was provocative of violence within the meaning of disturbing the peace statute.

As to the First Amendment, the Court of Appeal cited our old favorite, fighting words. Some words the court said are just understood to lead to violence. He can use other words, better words.

Male Speaker: The defendant has not been subjected to prosecution for expressing his political views. His right to speak out against the draft and war is protected by the First Amendment. However, no one has the right to express his views by means of printing lewd and vulgar language which is likely to cause others to breach the peace to protect women and children from such exposure.

Ken White: In other words, you have the right to free speech, Mr. Cohen, just not to say that word. A few years earlier, the California Court of Appeal decision might have been an obvious, even an uncontroversial result. With the times, they were changing.

[Music]

Ken White: I talked to Melissa Mohr, who wrote a book called ‘Holy Sh*t: A Brief History of Swearing’, and I asked her, what was the social status of the word “fuck” in 1968?

Melissa Mohr: That’s a real point of transition I think because the word “fuck” had been around for hundreds of years but up until sort of the World War I had really been something that people would say in private but would never make an appearance in public.

And in World War I, World War II with soldiers coming back and writing memoires about their experiences, the F-word really got more-and-more noticed, although even then it was often expurgated and F-dash-dash-dash or Norman Mailer said “fug”, he didn’t print it in his stuff.

But by the 60s, with the sort of hippies, anti-war movements, they were rebelling against all kinds of things and one of the things they were rebelling against was their sort of current attitude towards bad words, and so these words were suddenly making much more of an appearance in public.

Ken White: Paul Cohen didn’t give up. His case reached the United States Supreme Court on February 22, 1971. Now 1971, was already quite different than 1968 culturally, but the Supreme Court was still not a place where you would expect to hear people say fuck.

Chief Justice Warren Burger tried to convey subtly that the parties would not have to repeat the language from the record. Listen carefully because this 50-year-old audio is a little grainy.

Chief Justice Warren Burger: I might suggest you that as in most cases, the court is thoroughly familiar with factual setting of this case, and it will not be necessary for you, I am sure to dwell on the facts.

Ken White: Huh, nice try, Mr. Chief Justice. But Melville Nimmer, Cohen’s attorney was not having any of that.

Melville B. Nimmer: 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.

Ken White: Now, judges are very concerned with decorum in courtrooms. And so, one of the things that justices focused on was whether there was any evidence that Cohen was wearing the noddy jacket in the courtroom and whether that was the basis of the conviction; but he didn’t and it wasn’t.

(00:09:58)

Melville B. Nimmer: I don’t think that arises in this case.

Chief Justice Warren Burger: You said, he did not wear this jacket in the courtroom?

Melville B. Nimmer: That is correct, Your Honor.

Ken White: The advocates in the court were also very interested in whether the jacket constituted fighting words. You remember fighting words from Chaplinsky v. New Hampshire, our first episode.

The notion that some words by their nature provoke a fight and the government can therefore punish them. But are words on a jacket like words uttered to somebody’s face? Cohen’s lawyer argued, no, because unlike fighting words the words on the jacket aren’t insult aimed at someone.

Justice Byron R. White: Is your view of fighting words different than — do you think fighting words are different than insulting words?

Melville B. Nimmer: No, Your Honor. That’s precisely my point. I think they are 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 is the concept of fighting words refers to, as in Chaplinsky, “damned racketeer and fascist.”

Here, there was no attack of the hearer. There was an opposition verbal attack if you all on an institution, the selective service system, but not as against any of the viewers of this side, and we submit this does not at all come under the Chaplinsky fighting words concept.

Chief Justice Warren Burger: Let’s go back to what Justice —

Ken White: Some of the judges also want to know more or less the same thing the California Court of Appeal wanted to know, the same thing your mother would want to know.

Female Speaker: Why can’t you find a better word?

Ken White: The reason was that the power of the word, its transgression conveys something.

Chief Justice Warren Burger: Now what does this have to do with the communicating a dialog or discussion of public issues?

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 the 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 he had used the laundered form of expression, “I hate the draft” they would have been ignorant to a degree.

Ken White: The attorney for the government tried to convince the Supreme Court that this was a case about conduct, not speech. The idea was that Mr. Cohen didn’t see something, he wore a sign and displayed it. The court was skeptical.

Justice Potter Stewart: Merely if there was offensive conduct.

Michael T. Sauer: Correct. Conduct by displaying the jacket.

Justice Potter Stewart: And the conduct was what?

Michael T. Sauer: By wearing the jacket and walking in the corridor.

Justice Potter Stewart: Well, wearing the – was it, the conduct was precisely what?

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?

Michael T. Sauer: Walking with the sign, merely walking, no.

Justice Potter Stewart: And so what was the conduct?

Michael T. Sauer: Displaying the sign.

Justice Potter Stewart: Displaying?

Michael T. Sauer: Yes, his conduct of displaying the sign.

Justice Potter Stewart: The words?

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.

Michael T. Sauer: Right, they were painted on.

Justice Potter Stewart: The jacket?

Michael T. Sauer: Correct.

Ken White: On June 7, 1971, the Supreme Court ruled five to four that Paul Robert Cohen’s act of wearing the jacket was protected by the First Amendment, and that his conviction must be overturned. The Court rejected the government’s argument that California was trying to regulate conduct, not speech. The only conduct the Court said was the fact of communication. There was no showing that Cohen was trying to incite anyone, or that he succeeded in doing so. The conviction rested on the content of his message. It rested on the word “fuck”.

[Music]

Ken White: This the Court pointed out did not fall into an established exception to free speech. It wasn’t fighting words, because it wasn’t directed at any person as an insult.

(00:15:01)

It was an incitement because there was no evidence it would use to provoke observers into lawlessness. It wasn’t a case of subjecting people to involuntary speech like a noisy sound truck, because people could avert their eyes. It all came down to the question of whether the government can punish the word “fuck”, because many people find it offensive. The Court said, no. Here’s what Justice Harlan wrote.

Justice John Marshall Harlan, II: How is one to distinguish this from any other offensive word? Surely, the state has no right to cleanse public debate to the point where it is grammatically palatable to the most squeamish among us. Yet no readily ascertainable general principle exists for stopping short of that result were we to affirm the judgment below.

For, 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.

Indeed, we think it is largely because governmental officials cannot make principled distinctions in this area that the Constitution leaves matters of taste and style so largely to the individual.

Ken White: Justice Harlan went on to explain that the power of the state was seeking here, the power to punish words because they are offensive, is dangerous and difficult to limit.

Justice John Marshall Harlan, II: Finally, and in the same vein we cannot indulge the facile assumption that one can forbid particular words without also running a substantial risk of suppressing ideas in the process.

Indeed, governments might soon seize upon the censorship of particular words as a convenient guise for banning the expression of unpopular views. We have been able, as noted above, to discern little social benefit that might result from running the risk of opening the door to such grave results.

Ken White: Or as Lenny Bruce want to put it, Take away the right to say “fuck” and you take away the right to say “fuck the government”.

Looking back, Cohen v. California was significant for two uses of the word “fuck”. One obviously was Cohen’s, but the other was his lawyer’s willingness to use the word “fuck” in oral argument before the United States Supreme Court. A bold move, but did it make a difference?

Alan Garfield is a professor at Delaware Law School and he thinks so. He wrote a law review article titled “To Swear or not to Swear”. Using foul language during a Supreme Court oral argument, his point was that Mel Nimmer, Cohen’s lawyer, said “fuck”, and prevailed on the argument that the government could not punish that word.

Alan Garfield: But, you know, there is a wonderful story talking about his courage in doing that, because that was the best strategy for his client. There was a story about how flying back to Los Angeles, his son, who is 16-years-old or something was on the plane with him and Nimmer apparently told his son that he thought that as soon as he use the F-word in the Supreme Court, the guards were going to grab him and drag out of the court. So that was brave and I —

Ken White: But Professor Garfield points out, lawyers who don’t confront the justices with words at issue in a case have tended to lose.

Alan Garfield: In the Pacifica case which was the next case that really teed this up the case about George Carlin’s filthy words routine, the seven words you can’t say on the radio. The lawyer didn’t use any of the foul language, and he lost the case. So as I always telling my students, the moral of the story is when making oral argument, make sure you use foul language.

Ken White: Professor Garfield is only partially kidding there, because in defending the right to use the word it’s actually very important to say the word.

Alan Garfield: It only comes up when your client is being punished for having used foul language and you are trying to make a First Amendment argument that that is an unlawful abridgement of speech. I mean, there is lots of fact patterns where somebody might use the F-word but it’s in the context of making a threat. I am going to fucking kill you. Making a defamatory statement, so and so was sleeping with this fucking redheaded Russian spy, but if they are being sued for defamation or because they made a threat, it’s not because they used the F-word, but in this case, if Cohen had said on his jacket, I hate the draft, there wouldn’t be any case.

(00:19:58)

And for Nimmer to not use the F-word in his oral argument, even affect would be conceding, that it’s such a toxic radioactive taboo word that the government will be justified and suppressing it. So, he really, to overcome that taboo, he realized he needed to use it.

Ken White: But not everyone learned is this lesson. As late as 2012, when the Supreme Court heard arguments about the FCC’s power to punish Fox because Sharon, Nicole Richie swore at the Golden Globe Awards, you can hear oral arguments that are perfectly sanitized of the very words that are at the heart of the case.

Chief Justice John Roberts: They don’t want sanitized language. They want to hear all those other words.

Male Speaker: Sexually explicit or excretory activity.

Chief Justice John Roberts: Activities or organs.

Female Speaker: The expletives.

Chief Justice John Roberts: The S-word, the F-word.

Male Speaker: The pleading expletive.

Chief Justice John Roberts: The F-word or the S-word.

Male Speaker: Depictions of erratic activity, highly bile and lewd.

Chief Justice John Roberts: Seven dirty words, but it’s included.

Ken White: One thing notable about the opinion in Cohen v. California is that Justice Harlan said fuck, right there in the opinion, in front of God and everybody. Justice Blackmun in his dissent did not use the word. He referred to it as an absurd and immature antic.

Supreme Court cases several decades later by different justices sometimes used dashes or asterisks rather than use language like that. It shows that our feelings about words don’t go in a straight line. It also shows how driven the Supreme Court can be by individual foibles and personalities.

Here’s Melissa Mohr again.

Melissa Mohr: And we also just see individual personalities, I mean I love the Cohen v. California opinion, it’s just so beautifully written. I mean, it’s just, I don’t read too many opinions, I am not a lawyer, but I have read many of them about obscenity and indecency, and it’s just, he is a such a good writer and just he is — I don’t know, I just love it. And then the — yeah, you read the 2009 when all the obscenities are — they are redacted, they don’t even print them and it’s like, oh.

We can’t even — the legal record can’t know that Nicole Richie said “cow shit” and then it’s just kind of silly.

Ken White: The Supreme Court’s ruling in Cohen was controversial. Critics saw it as coarsening society, undermining the moral and religious values that were the basis for the Republic in encouraging degeneracy.

Charles Keating, President Nixon’s appointee to the President’s Commission on Obscenity and Pornography filed an amicus brief asking the Supreme Court to rehear the case because of the grave moral issues involved. The Court declined. No doubt it was the resulting moral chaos that led Keating to his central role in the savings and loan scandals, the collapse of Lincoln Savings and Loan Association, and his eventual conviction for wire and bankruptcy fraud.

Fuck was a powerful word.

[Music]

Ken White: But did fuck stay powerful? Does the ubiquity of casual profanity make words like fuck powerless? Do they eliminate the emotive impact that Cohen convinced the Supreme Court was so important.

Melissa Mohr points out that when one word falls, another tends to take its place.

Melissa Mohr: Fucking shit and that was kind of sexual scatological words replaced religious words; by God, by God’s bone, and they are now in the process of being replaced by sort of epithets and racial slurs, what most people would consider to be the worst words in the English language, like the n-word, things like that.

[Music]

Ken White: In this series of podcasts, I will be telling more stories behind the important First Amendment decisions. If there’s a case you want to hear about or a First Amendment question you’d like answered on the podcast, drop me a line at [email protected].

Thanks for listening. You can find documents and cases mentioned on this podcast at popehat.com or legaltalknetwork.com.

If you like what you heard today, please remember to rate us in Apple Podcasts or follow us on Twitter or Facebook.

Lastly, I would like to thank our participants, voice actors, producers and audio engineers for their participation. My guests Melissa Mohr and Alan Garfield; our voice actors, Christopher Anderson as Judge Alarcon, Jordan O’Brien as Justice John Marshall Harlan, II, Lacey McCain as Yo’ Mama; Producer, Kate Nutting, Executive Producer Laurence Colletti, and last but not least, music, sound design, editing, and mixing by Adam Lockwood.

(00:25:19)

Excerpts from the oral argument in Cohen v. California provided by OYEZ, a free law project by Justia and the Legal Information Institute of Cornell Law School.

See you next time for Episode 10. I know it, when I see it.

[Music]

Outro: The views expressed by the participants of this program are their own and do not represent the views of, nor are they endorsed by Popehat, Legal Talk Network, or their respective officers, directors, employees, agents, representatives, shareholders, or subsidiaries. None of the content should be considered legal advice. As always, consult a lawyer, please.

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