Digitus Impudicus: The Middle Finger and the Law - Wired

2008] Digitus Impudicus 1437
“fuck,” from the public’s vocabulary. 255 In overturning Cohen’s
conviction for wearing a jacket with the words “Fuck the Draft”
stitched onto the back, the Court reasoned that, because the
government cannot make principled distinctions between offensive
and nonoffensive speech, the Constitution allows individuals, rather
than the government, to make their own decisions about matters of
taste, style, and decorum. 256 The Court also stressed that an
individual’s use of profane or offensive language may capture the
emotive aspect of the communication more than the cognitive. 257 In
other words, the use of language or gestures to express an emotion
may have as much meaning for First Amendment purposes as
“language which expresses a precise idea.” 258 Finally, the Court
recognized the potential for the government to suppress unpopular or
critical ideas by prohibiting particularly offensive words, a result that
would contravene the very spirit of the First Amendment. 259
In holding that the government may regulate profane or offensive
language only when it rises to the level of fighting words or obscenity,
the Cohen Court emphasized the distinction between speech in public
places and speech that intrudes into the privacy of the home. 260 The
Court stressed that First Amendment protections are stronger in
public places, but recognized that, in some circumstances, the
government may prohibit the intrusion of unwelcome expression into
the home. 261 The government generally may not censor discourse in
public places merely because unwilling listeners may find the speech
offensive. 262 The Court noted that a broader rule would “effectively
empower a majority to silence dissidents simply as a matter of
255 403 U.S. 15, 22-23, 25 (1971) (noting that government may not cleanse public
discussion “to the point where it is grammatically palatable to the most squeamish
among us”).
256 Id. at 25 (stating that “one man’s vulgarity is another’s lyric”).
257 Id. at 25-26 (suggesting that Constitution protects emotive element of speech,
even if it is offensive, because it may be heart of message conveyed by communicator).
258 See Rutzick, supra note 236, at 19 (noting that word “Fuck” on Cohen’s jacket
stimulated emotional response in viewers, drew attention to his political message, and
expressed intensity of his own feelings with force that he may not have been able to
achieve absent offensive language).
259 Cohen, 403 U.S. at 26.
260 Id. at 21.
261 Id.
262 Id.; see also Jeffrey M. Shaman, The Theory of Low-Value Speech, 48 SMU L. REV.
297, 313-14 (1995) (asserting that government may not ban profanity from public
places because — although offensive to some — it is protected under First
Amendment).