New thread: grading Justices and Opinions

[Bryan Wildenthal]

Apologies for my delay in responding to Michael McConnell's query about my
praise of Harlan's opinion in Cohen v California (I plead midterms).

I think it is incorrect to say that Justice Harlan did not suggest any
limits on offensive speech in public.  Harlan was at pains to note that the
state could have (but failed to) "attempt to support this conviction on the
ground [of] ... preserv[ing] an appropriately decorous atmosphere in the
courthouse where Cohen was arrested...."  403 US at 19.  Aside from that bow
to the possibility of content-sensitive time, place, or manner restrictions
in certain restricted fora, Harlan noted that offensive language taking the
form of dangerous incitement or fighting words or obscenity, or offensive
conduct targeted for reasons independent of the message conveyed, could be
regulated by the state.  He carefully explained how Cohen's speech did not
fall into any of those carefully crafted (being generous to the
anti-obscenity rule here) exceptions to full-strength First Amendment
protection, and why therefore it must be protected.  This very application
of pre-existing legal principles, conducted steadily and eloquently in a
case where it would have been easy to be swayed by an emotional
fact-specific reaction to arguably worthless and trivial speech, is one of
the most admirable features of the opinion for me (and reflects Harlan's
virtues and craft as a judge).  I think the Blackmun dissent in Cohen (one
of his worst) is by contrast a classic and embarrassing example of an
emotional, ill-considered, and highly injudicious reaction to a factually
provocative case.

I derive at least three very important general principles of First Amendment
law from Cohen, and indeed I use the case as a primary teaching tool because
of these:

1.  Speech which conveys emotional and inarticulate messages is generally as
deserving of protection as abstract "intellectual" speech.  As I phrase it
to my students, the First Amendment isn't just for NPR commentaries.

2.  In the public sphere, the right of free expression even when and if
"offensive" to some or many others, must generally prevail over any claimed
right of offended audiences to silence the speech.  I.e., look away, look
away.  I think in this sense Cohen is a critical pillar of the rule against
the heckler's veto (a principle that has not always emerged as clearly as it
should have in the Court's opinions, given such patently wrongly decided
cases as Feiner v New York).  As Harlan very eloquently stated:  "The
ability of government, consonant with the Constitution, to shut off
discourse solely to protect others from hearing it is ... dependent on a
showing that privacy interests are being invaded in an essentially
intolerable manner.  Any broader view of this authority would effectively
empower a majority to silence dissidents simply as a matter of personal
predilections."  403 US at 21.  As an openly gay man in a society where men
kissing or holding hands in public, or even on movie screens, or even
verbally revealing their sexual orientation, are often greeted with groans
of revulsion or outright violence at such expression, this is a principle
very dear to me.

3.  The government may not generally assert any interest in suppressing
speech simply on grounds of taste, style, or morals.

Michael's point about the political message of Cohen's jacket explaining the
decision is a fair one and quite plausible.  But I would say that Harlan's
fundamental point was the generic danger that ANY restrictions on "offensive
language in public places" could so easily be used to target disliked or
unpopular messages.  I am very glad that Harlan and the Court for which he
spoke did not suggest any generic limits on "offensive language in public
places" (apart from the specific possibilities he noted) and I don't think
there should be any.  Can Michael propose any that would avoid grave First
Amendment concerns?

Harlan said it better than me, so I will close by again quoting him:
"[W]hile the particular four-letter word being litigated here is perhaps
more distasteful than most others of its genre, it is nevertheless often
true that one man's vulgarity is another's lyric.  Indeed, we think it is
largely because government officials cannot make principled distinctions in
this area that the Constitution leaves matters of taste and style so largely
to the individual."  403 US at 25.

Bryan Wildenthal, Thomas Jefferson School of Law

> -----Original Message-----
> From: Michael McConnell [mailto:mcconnellm at LAW.UTAH.EDU]
> Sent: Monday, March 12, 2001 12:26 PM
> To: CONLAWPROF at listserv.ucla.edu
> Subject: Re: New thread: grading Justices and Opinions
>
>
> I would be interested to learn why Cohen is profoundly
> correct, or even what
> it really stands for. What is the legal principle? I cannot
> believe there is
> no limit to the right to use offensive language in public
> places, but the
> Harlan opinion does not suggest any limit. I am inclined to
> interpret the
> opinion as resting on an unstated rationale: because the speech was so
> directly political, and there was suspicion but not actual
> proof that the
> authorities cracked down in part because of the political
> message, the Court
> protected the speech. Obviously that is not the stated rationale.
>
> Michael W. McConnell
> University of Utah College of Law
> 332 S. 1400 East Room 102
> Salt Lake City, UT 84112
>
>
> -----Original Message-----
> From: Bryan Wildenthal [mailto:bryanw at TJSL.EDU]
> Sent: Monday, March 12, 2001 11:53 AM
> To: CONLAWPROF at listserv.ucla.edu
> Subject: Re: New thread: grading Justices and Opinions
>
>
> I recently defended JM Harlan II's place on the greatest Supreme Court
> Justices list, largely because of his Cohen opinion, which I
> think is a
> classic (and by the way, I think the result is profoundly
> correct also).  I
> would also nominate (apologies if someone else already did
> and I missed it)
> Brennan's opinion in Texas v Johnson, one of the most crisp, elegant,
> persuasive, and RIGHT First Amendment opinions in the Court's history.
> Funny how often the "little" cases with the weird facts make
> for some of the greatest opinions......