Sunday, September 24, 2017

Recalling the “Fuck the Draft” Case: Our Freedom to Dissent

A 19-year-old man, Paul Cohen, was arrested, convicted and sentenced to 30 days in jail for wearing a jacket bearing the words “Fuck the Draft” inside the Los Angeles Courthouse.
He was convicted of violating a law that prohibited "maliciously and willfully disturbing the peace or quiet of any neighborhood or person [by] offensive conduct.”

By a 5-4 vote, the Supreme Court threw out his conviction, ruling that the First Amendment protected this vulgar expression.
Justice John Marshall Harlan II wrote that speech and conduct are two different matters. His core idea was that “Fuck the Draft,” while shocking to many people, did not fall into a category of cases under the “fighting words” doctrine (four justices disagreed).

Harlan stated that the issue was “whether California can excise, as ‘offensive conduct,’ one particular scurrilous epithet from the public discourse, either upon the theory...that its use is inherently likely to cause violent reaction or upon a more general assertion that the States, acting as guardians of public morality, may properly remove this offensive word from the public vocabulary.”
Players who take a knee during the national anthem offend some people, as Cohen did with his jacket; but other people agree with the anthem protests. 

Looking back 45 years, it would be hard to find anyone who supports the draft, a terribly misguided policy for a pointless war that deeply disrupted or ended the lives of a generation of young Americans. Cohen’s outrage has stood the test of time; even if it didn't, his speech was protected. However we feel about anthem protests, they are protected speech in a nation where the freedom to dissent is a fundamental right.

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