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Sunday, June 07, 2020

What does Cohen v. California clearly establish? (Updated)

The stories are confused and seem incomplete. But apparently the sheriff of Lowndes County, Georgia confiscated from a protester in Valdosta a sign reading "Fuck Trump." Georgia law prohibits profanity in the presence of children under 14. (Update: A woman was arrested for violating the law with a different sign the following day. The article indicates the sheriff intends to continue enforcing the law).

The enforcement of the ordinance violates the First Amendment. Profanity is constitutionally protected and, at least outside of sexually explicit material on TV, adult speech cannot be reduced to what is appropriate for children. So although the Georgia Supreme Court declared that law valid in 1973, it cannot stand under modern doctrine.

The question is whether the First Amendment right to display a "Fuck ____" sign is clearly established--the constitutional question is beyond dispute so no reasonable officer could have believed seizing this sign was constitutionally valid. Is this like Johnson and flag burning? Or might a court actually say a jacket in a courthouse is different from a hand-made sign at a protest rally where children might be present?

Posted by Howard Wasserman on June 7, 2020 at 11:17 AM in First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink


The language of the statute ("vulgar or profane") would suggest to me reading certain classic novels might be problematic.

The updated article inartfully speaks of an "obscenity" rule at one point.

University of Georgia law professor Clare Norins is cited too.

Pacifica perhaps suggests that there is an argument that holding up a sign might be treated differently than the telephone portion. If walking around in a court corrider with a Fuck the Draft jacket with women and children specifically present is protected, but a Fuck Trump sign is not, or is not clearly established law, I guess the critics of that principle as currently applied has more fodder.

Posted by: Joe | Jun 9, 2020 2:36:01 PM

Pacifica has been limited to broadcast (not even cable, only broadcast) in the house. ACLU v. Reno said the protecting children rationale did not apply to the internet. Hard to think that if porn can't be banned even where children might see it, then mere profanity (which, as you note, does not fall within any unprotected category--Cohen rejected the idea that fuck is a fighting word) can be banned.

Is all of this enough to clearly establish? Perhaps you are right that it requires the connection of too many dots.

Posted by: Howard Wasserman | Jun 8, 2020 10:26:37 PM

I doubt the law is clearly established enough; I'm not even sure, absent qualified immunity, the officer should lose under existing doctrine. I'll just note a couple things:

The statute in Cohen forbade "offensive conduct," or, inter alia, vulgar language in the presence of women or children. Cohen was prosecuted under the offensive conduct clause, not the women/children clause, though as Joe mentions women and children were in fact present. (Of course, the women half of the women/children clause is clearly indefensible today.) In Footnote 4, the Court actually praises the women/children clause for putting people "on much fairer notice as to what is prohibited" than the offensive conduct clause, which they deem overbroad. And the penultimate sentence of the opinion says that "absent a more particularized and compelling rationale for its actions," a state may not criminalize the display of an expletive. So I think it's at least arguable that Cohen didn't settle the constitutionality of a more narrowly drawn prohibition that criminalizes the same speech, especially one targeted at protecting an audience of children.

On the other hand, we have Pacifica, a case I barely know, but which actually did specifically concern and uphold a censorship regime whose purpose was protecting children from exposure to expletives. Pacifica does say a bit, in distinguishing Cohen, about the speech there being oral, not written, and therefore comprehensible to smaller children. Surely, however, the combination of Cohen and Pacifica doesn't clearly establish that the FCC couldn't ban expletives from closed captioning in prime-time hours. Pacifica also says a great deal about broadcasts (somehow) invading homes of unwilling listeners, and the home being special, but that too is only one of multiple, not clearly necessary factors on which the case turned.

But for Pacifica I think a nice argument could be made that under Brown v. EMA, any category of child-targeting unprotected speech (like obscenity as to children in Ginsberg v. New York) can only be a dumbed-down kids' version of some general category of unprotected speech (like obscenity as to children in Ginsberg was). I'm not sure there is some category of unprotected speech that expletives are the kids' version of; if pressed one would have to say fighting words, but it's an awkward fit. That said, that part of Brown may be dicta, and is arguably in tension with Pacifica.

Posted by: Asher Steinberg | Jun 8, 2020 6:29:14 PM

Cohen v. California noted that "there were women and children present in the corridor."

The GA provision in full notes: "Without provocation, uses obscene and vulgar or profane language in the presence of or by telephone to a person under the age of 14 years which threatens an immediate breach of the peace."

It is unclear to me watching the news report if there actually was someone under 14 around. Also, the "which" sounds like merely holding up a protest sign is not enough since it won't threaten an immediate breach of the peace. At the very least, the provision seems unconstitutionally vague.

It is somewhat unclear to me how the law was upheld post-Cohen though Georgia did around that time also uphold a prosecution of the showing of Carnal Knowledge that the Supreme Court later found unconstitutional.

(Breaux v. State might be the case. If so, it involved a man using sexually explicit language to a young girl. Cohen was not cited. At the very least, a political sign that merely might be seen by a passing minor would seem to be a different case. Even there, a judge dissented.)

Posted by: Joe | Jun 7, 2020 5:04:58 PM

So I could hold up such a sign at a high school baseball game?

Or does this constitution thing only apply outside of the very institution whose sole purpose is to expose people to different ideas than their parents want them exposed to?

Posted by: Morse Frederick | Jun 7, 2020 4:19:22 PM

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