1.       Cohen v. CA (1971): In LA city courthouse.  Δ wears jacket “Fuck the draft.”  Arrested as leaving the courthouse under CA penal code that prohibits “incitement of peace, by offensive conduct.” 

a.       Held: Conviction is unconstitutional.  Govt’s case lacks “particularized & compelling reasons for its actions” (i.e. little categories of speech that may be suppressed), cf content based, unprotected speech categories

(1)     No evid of intent or tendency to incite violence/unlawfulness (thus not w/in Chaplinsky or Brandenburg)

(2)     Not obscenity b/c not sexually explicit or erotic in this context

(3)     Not defamation or libel (doesn’t hurt any particular person)

(4)     Fighting words—no b/c no one reacts to this “speech” (except the bailiff).  But even then, bailiff didn’t breach the peace

→ THUS, CONTENT-BASED WAYS TO REGULATE SPEECH ARE OUT

b.      This is not a content neutral statute

(1)     Not a TMP restriction—i.e. not limited to the courthouse only.  Statute is too broad.

(2)     Harlan: 1st A doesn’t regulate “taste” or “style” – emotive force of speech matters. 

(a)     Don’t want the govt to regulate taste b/c may over-censor a person b/c they may not be able to discuss something “properly.”  Would exclude them from the discussion

c.       No “captive audience”—presumed presence of unwilling viewers is no automatic ok to curtail. 

(1)     Not an intrusion into home

(2)     Viewers easily could avert eyes

(3)     In the courthouse, can come and go.  No fit here.

d.      Cohen focus → hearer (i.e. does the speaker’s insult provoke a reasonable hearer to imminent violence v. speaker)

v. Brandenburg focus → speaker (i.e. does the speaker’s advocacy intentionally provoke hearer to imminent violence v. others)