• Last updated on November 11, 2022

The Supreme Court overturned the conviction of a man for wearing a jacket emblazoned with a profanity in a courthouse, thereby establishing the concept of symbolic speech and limiting the concept of fighting words.

By a 5-4 vote, the Court overturned the conviction of a defendant who wore a jacket with the words “Fuck the draft” emblazoned across its front into a Los Angeles courthouse, where profanity was prohibited. Justice John M. Harlan II,Harlan, John M., II;Cohen v. California[Cohen v. California] a generally conservative justice, wrote the opinion for the 5-4 majority, which held that symbolic speech, even if provocative in nature, was protected by the First Amendment.Symbolic speech;Cohen v. California[Cohen v. California]

Although the Court substantially broadened the range of provocative speech under First Amendment protection, it left limits. For example, when young men protested the Vietnam War by burning their draft cards, the Court upheld their conviction in United States v. O’Brien[case]O’Brien, United States v.[OBrien, United States v.] (1968). In that case, the protection extended to symbolic speech was judged not to extend to violations of otherwise valid laws. In Tinker v. Des Moines Independent Community School District[case]Tinker v. Des Moines Independent Community School District[Tinker v. Des Moines Independent Community School District] (1969), the Court ruled that schools cannot stop students from protesting by wearing black arm bands. In Texas v. Johnson[case]Texas v. Johnson[Texas v. Johnson] (1989), the Court voided a Texas law that banned the burning of the U.S. flag, finding the act to be protected symbolic speech because it was a form of political protest.

Brandenburg v. Ohio

First Amendment

O’Brien, United States v.

Symbolic speech

Texas v. Johnson

Tinker v. Des Moines Independent Community School District

Categories: History