The Comparison of United States v. OBrien and Cohen v.

California

The Comparison of United States v. OBrien

and Cohen v. California
Caleb Schescke
University of Nebraska at Kearney

The Comparison of United States v. OBrien and Cohen v. California

Abstract
The research compiled will show the similarities between two Supreme Court
cases that changed the United States and created precedence for many court cases to
come. Both Supreme Court cases deal entirely with the First Amendment and free speech,
and while they are different expressions of anger you will find that they are similarly
treated. The First Amendment guarantees freedom of expression by prohibiting the
government from restricting the press or the rights of individuals to speak freely.

The Comparison of United States v. OBrien and Cohen v. California

The Comparison of United States v. OBrien and Cohen v. California

The United States is a federal constitutional republic, in which the President of the
United States, Congress, and Courts share powers reserved to the national government.
With this power comes great responsibility, and that power is to create laws that coincide
with our constitution and preserve its meaning. As time has progressed the United States
Supreme Court has been faced with many decisions that were monumental in our
evolution. Among other cherished values, the First Amendment protects freedom of
speech. The U.S. Supreme Court often has struggled to determine what exactly
constitutes protected speech. It is in cases such as United States v. OBrien and Cohen v.
California that we find the Supreme Court struggling with the definition of protected
speech. In these cases the idea also emerges that actions can also be classified in the same
category as speech. Whether it is burning your draft card or wearing clothing with
obscene language on it, the question still arises of constitutionality. By comparing the two
cases it will become evident that speech and actions are treated with the same amount of
respect and care.
It was in 1948 that the United States initiated a peacetime draft with Selective
Services, this made it so all male citizens must enter their name in the draft at the age of
18. In 1965, Congress established an Act that required all of these young men to have
their draft cards in their possession at all times and prohibited tampering with the cards.
On the morning of March 31, 1966, David Paul O'Brien and three friends burned their
draft cards on the South Boston Courthouse stairs. After burning their cards, the men then
found themselves under attack by some of the crowd and were abruptly escorted into the
courthouse where they were read their rights. These actions directly violated the act set in

The Comparison of United States v. OBrien and Cohen v. California

place by Congress the year before, but OBrien went on to argue the constitutionality of
the act in the first place. The Supreme Court Justices would soon find their hands full
with the case created that day by OBrien.
On April 26, 1968, 19-year-old Paul Cohen was arrested for wearing a jacket
bearing the words "F the Draft" inside the Los Angeles Courthouse. He was convicted
for violating Section 415 of the California Penal Code, which prohibits willfully
disturbing the peace in any neighborhood by offensive conduct. His actions did cause
some disturbance of the peace, but like all court cases that have some weight it was sent
to the Court of Appeal. While in the Court of Appeal they decided to uphold the charges
causing the case to move to the Supreme Court. The Appellate Court upheld the case on
the grounds that offensive conduct is a broad statement; they defined it as behavior that
has a tendency to provoke others to acts of violence or to in turn disturb the peace."
(Cohen v. California) This case questions the boundaries of what can be classified as
offensive conduct, and how the Supreme Court treats actions as well as speech.
It is evident that any actions performed in or around a Courthouse that could
possibly insight a riot are something that the courts take very seriously. Both of these
cases had a major impact on free speech and how the court goes about defining it. Each
case will be examined by covering opposing opinions as well as concurring views. With
these examinations, similarities and differences can be further acknowledged.
The United States v. OBrien Supreme court case was a result of the Vietnam War
and was called an act of protest. OBrien claims that he burned the draft card publicly to
persuade others to oppose the war, "so that other people would reevaluate their positions
with Selective Service, with the armed forces, and reevaluate their place in the culture of

The Comparison of United States v. OBrien and Cohen v. California

today, to hopefully consider my position." (United States v. O'Brien 391 U.S. 367)
OBriens main argument was that this act was simply him exercising his rights to free
speech by the use of symbolic speech, which is the use of actions that purposefully
convey a particular message or statement to those viewing it. His argument is that the
freedom of expression which the First Amendment guarantees includes all modes of
communication of ideas by conduct, and that his conduct is within this definition
because he did it in demonstration against the war and against the draft. (United States
v. O'Brien - Supreme Court 1968)
This act violated the 1965 Amendment, which clearly prohibits the tampering or
destroying of draft cards. From the courts perspective, destroying a draft card only
inhibits the role of an important government objective, which is not specifically geared to
the oppression of speech. "We think it clear, that a government regulation is sufficiently
justified if it is within the constitutional power of the Government; if it furthers an
important or substantial governmental interest; if the governmental interest is unrelated to
the suppression of free expression; and if the incidental restriction on alleged First
Amendment freedoms is not greater than is essential to the furtherance of that interest."
(United States v. O'Brien) The court gives four valuable reasons for the existence of
draft cards, with the first being simply proof that an individual is signed up for the draft.
The information used on the draft document also creates a line of communication
between the citizen and the Government. The note also acts as a reminder for the citizen
to update their current address so that the Selective services may contact them. There are
also strict laws in place about forging and manipulating these documents, and if they are
destroyed it is really hard to monitor such actions. The governmental interest and the

The Comparison of United States v. OBrien and Cohen v. California

scope of the 1965 Amendment are limited to preventing harm to the smooth and efficient
functioning of the Selective Service System. When O'Brien deliberately rendered
unavailable his registration certificate, he willfully frustrated this governmental interest.
For this non-communicative impact of his conduct, and for nothing else, he was
convicted. (United States v. O'Brien, 1968)
While ending in a seven to one majority vote in the Supreme Court, the efforts of
OBrien were proven to be a waste of time. Chief Justice Earl Warren gave the final
decision by saying, the Court of Appeals should have affirmed the judgment of
conviction entered by the District Court. Accordingly, we vacate the judgment of the
Court of Appeals, and reinstate the judgment and sentence of the District Court. This
disposition makes unnecessary consideration of O'Brien's claim that the Court of Appeals
erred in affirming his conviction on the basis of the non-possession regulation(United
States v. O'Brien - Supreme Court 1968) With the verdict also came a new precedence
that would later be used for several other cases to come. From this case the Supreme
Court developed the OBrien Test, which is used to determine the level of protection to
be afforded to expressive conduct. It is a four-part test used when non-speech is
combined with speech in the same course of conduct. The four requirements are as
follows: the regulation must itself be within the constitutional power of the government,
it must further substantial or important government activity, the government interest must
be unrelated to the suppression of free expression, and the identical restriction must go no
farther than is essential to the furtherance of that interest. This case was monumental in
the development of free speech criteria and even paved the way for cases such as Cohen
v. California.

The Comparison of United States v. OBrien and Cohen v. California

California Penal Code 415 describes the crime commonly referred to as disturbing
the peace. Disturbing the peace as described by this code is any person who uses
offensive words in a public place which are inherently likely to provoke an immediate
violent reaction.(Penal Code Section 403-420.1) Robert Cohen in no way engaged in,
threatened to engage in, or did anyone as the result of his conduct threaten to commit any
act of violence. Therefore, it would seem that the defendant was wrongfully detained and
had his constitutional rights restricted, because federal law trumps state law.
Freedom of Speech was created by the founding fathers to ensure a fair future for
the people that live in the United States, and so that the government cannot simply
control all aspects of life. The grey area arises when determining what is protected, and
how to create a fail-safe way to determine this. It is evident throughout United States
history that speech that questions government power and unfavorable topics is usually
protected by the constitution as long as it follows certain rules. One of these rules is the
time, place, and manner rule, which is used to determine if an action was done
inappropriately. In Grayned v. The City of Rockford, the time, place, and manner concept
is summarized: "The crucial question is whether the manner of expression is basically
incompatible with the normal activity of a particular place at a particular time.
(Grayned v. City of Rockford) It would seem as if the act done by Cohen follows this
rule, but is the speech itself protected? Fighting words and Obscenity are two of the
major types of speech that are not protected because they are completely destructive and
serve no purpose other than to incite violence. The Supreme Court has developed rules
that define obscenity, and if the speech violates all the qualifications it is known as
obscene. In order to call something obscene, a court must determine: that the average

The Comparison of United States v. OBrien and Cohen v. California

person would find the work to excite lustful thoughts, depicts or describes sexual conduct
specifically prohibited by state law, and as a whole lacks serious literary, artistic, political
or scientific value. Fighting words are written or spoken words, generally expressed to
incite hatred or violence from their target. Cohens display does not fit the requirements
to be classified as obscene and by no means could be classified as fighting words. This
display by Cohen is called emotive speech, which does not incite violence or have
malicious intentions, but instead is used to show emotion towards power. Emotive
speech that is used to get attention is protected by the constitution. (Cohen v.
California, Casebriefs)
After being tossed around the lower court systems the case landed in the Supreme
Court where precedence would be made from the proceedings. In an opinion by Justice
John Marshall Harlan, the Court reasoned that the expletive, while provocative, was not
directed toward anyone; besides, there was no evidence that people in substantial
numbers would be provoked into some kind of physical action by the words on his
jacket. (Cohen v. California, Oyez) If the court prohibited expression like this and
censored it, they would be going against everything that the constitution stands for.
Cohens action was a display of political discontent, which is the very thing that the First
Amendment was created to protect. On June 07, 1971, the Supreme Court issued a 5-4
decision stating that the case of Cohen v. California (docket no. 299) should be reversed
and upholding the law in question [First Amendment (Speech, Press, And Assembly)] as
constitutional. The judgment rested on the Court's authority over judicial review at the
state level. It was decided by an opinion of the court (orally argued) and was liberal in
nature. (Cohen v. California, 1971) This case was a landmark case for the US

The Comparison of United States v. OBrien and Cohen v. California

Supreme Court because it confronted an ongoing battle of speech classification and found
a way to prove that not all explicit language is harmful to society. Justice John Marshall
Harlan put it best when he said, one mans vulgarity is anothers lyric.
Although OBrien lost his Supreme Court case by a landslide, it is still
comparable to the decision made in Cohen v. California. It is clear that actions such as
these are examples of expression regarding dissatisfaction with the US Government, and
therefore are protected by the Constitution. OBrien violated the concept of time, place,
and manner. The timing of his expression was the thing that really hurt his case, because
he acted out during a time when the government relied so heavily on a draft system. The
major reason that Cohen was successful and OBrien wasnt was because the laws that
prohibited these actions were from two different powers. While the Constitution outranks
California state law, the constitution is equal to the amendment passed to prevent the
destruction of draft cards. Had OBrien used other means to convey his anger towards the
draft than destroying his draft card, he would most likely have never step foot in the
Supreme Court. The acts done by OBrien and Cohen were both results of the war that
led to the disturbance of the peace, but Cohen acted within his rights as a citizen. The
clearest difference between these two cases is that OBrien violated a federal law while
Cohen violated a state law, and as history has shown federal laws become federal laws
because they are important and hardly get turned over.
Any attempt to regulate speech must be content neutral; that is the government
may not regulate speech based either on its subject matter or its viewpoint. Restrictions
that require examining the content of speech to be applied must pass strict scrutiny

The Comparison of United States v. OBrien and Cohen v. California

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The Supreme Court must operate from the standpoint that not all actions are
impermissible its just the manner in which they are exhibited. If the intentions of the
defendant are to incite a riot or exhibit hat towards another person, then it is hate speech
and is not protected. Neither case can be classified as hate speech, because they are not
calling for violence but rather just questioning their own government. While the Supreme
Court cases United States v. OBrien and Cohen v. California are very similar, the major
difference and the reason for Obriens failure was he it failed to comply with the
restrictions of time, place, and manner created in Ward v. Rock Against Racism. The
restriction violated permits the use of censorship when the questioned act or material
serves a significant governmental interest.
For many years there were no clear lines separating constitutional from
unconstitutional control of speech, and cases involving such line drawing have often been
very controversial. Both United States v. OBrien and Cohen v. California should receive
credit for dismantling these controversies, and creating precedence for future generations.
Without these cases, the United States may never have enacted the righteous and fair
justice system that protects the power of the people to this day.

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The Comparison of United States v. OBrien and Cohen v. California

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Cohen v. California. (n.d.). LII / Legal Information Institute. Web. 14 Oct. 2015, from
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The Comparison of United States v. OBrien and Cohen v. California

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