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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