1st Amendment – Cohen v. California

1st Amendment Text -

Quick quiz –

What five protections are guaranteed in the 1st

Amendment?

1st Amendment Text – December 15, 1791

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

1st Amendment Text - Examination Analyze the text: Author: (who created the source? What do you know about this person or his/her point of view? How might this affect the source’s meaning?) Context: (When and where was the source created? How might this affect the meaning?) Audience: (For what audience was this source created? How might this affect its meaning?) Purpose: (For what reason was this source created? How might this affect its meaning?) Significance: (What can be learned or inferred from this source? What is its main idea? Why is it important?

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

Original California Penal Code – 415 1872-1976

(Penal Code – A.K.A. – Criminal Code) California defined “Disturbing the Peace” as:

(1) Any person who unlawfully fights in a public place or challenges another person in a public place to fight.

(2) Any person who maliciously and willfully disturbs another person by loud and unreasonable noise.

(3) Any person who uses offensive words in a public place which are inherently likely to produce a violent reaction.

Original California Penal Code – 415 1872-1976

(Penal Code – A.K.A. – Criminal Code) California defined “Disturbing the Peace” as: California defined “Disturbing the Peace” as: (1) Any person who unlawfully

fights in a public place or challenges another person in a public place to fight.

(2) Any person who maliciously and willfully disturbs another person by loud and unreasonable noise.

(3) Any person who uses offensive words in a public place which are inherently likely to produce a violent reaction.

Analyze the text: Author: (who created the source? What do you know about this person or his/her point of view? How might this affect the source’s meaning?) Context: (When and where was the source created? How might this affect the meaning?) Audience: (For what audience was this source created? How might this affect its meaning?) Purpose: (For what reason was this source created? How might this affect its meaning?) Significance: (What can be learned or inferred from this source? What is its main idea? Why is it important?

Original California Penal Code – 415 1872-1976

(Penal Code – A.K.A. – Criminal Code) California defined “Disturbing the Peace” as: California defined “Disturbing the Peace” as: (1) Any person who unlawfully

fights in a public place or challenges another person in a public place to fight.

(2) Any person who maliciously and willfully disturbs another person by loud and unreasonable noise.

(3) Any person who uses offensive words in a public place which are inherently likely to produce a violent reaction.

Analyze the text:

What problems can you see in how this was written?

VIETNAM WAR BREAKS OUT • November 1, 1955 – April 30, 1975

• December 1, 1969 the Selective Service National Headquarters begins doing a lottery style drawing (first since 1942) to fill vacancies in the armed forces.

• Men who had physical problems, were attending college, or were needed at home to support their families might be granted deferments

Question: Think about the deferments……what groups would make up most of the drafted soldiers?

Protests Break Out

April 26, 1968

• 19-year old Paul Robert Cohen was arrested for wearing a jacket bearing the words "F*** the Draft" inside the Los Angeles Courthouse in the corridor outside the division 20 of the municipal court.

California Penal Code 415 Penalties for Violation

The California criminal justice system classifies crimes into three categories:

• Felonies (the most serious crimes, punishable by imprisonment in the California state prison, or sometimes, even death),

• Misdemeanors (crimes which are punishable by a maximum one-year county jail sentence), and

• Infractions (which include many traffic / moving violations and a handful of other criminal offenses).1

California Penal Code 415 Penalties for Violation

The prosecutor decides whether to file a disturbing the peace charge as an infraction or a misdemeanor.

The prosecutor will usually make that decision based on:

• the facts of the case, and

• the defendant's criminal history.

California Penal Code 415 Penalties for Violation

Infraction = Maximum fine of $250 and no jail time

Misdemeanor =

1. Informal probation,

2. A fine of up to four hundred dollars ($400), and/or

3. Up to ninety (90) days in county jail.

Your Task…. • Choose which side you want to be on.

Prosecution or defense?

• Now using the academic paragraph format. Write an opening argument that either is prosecuting Mr. Cohen or Defending him.

• Make sure to cite evidence in the case!

California Penal Code – 415 1976- Present

(Penal Code – A.K.A. – Criminal Code) California defined “Disturbing the Peace” as:

(1) Any person who unlawfully fights in a public place or challenges another person in a public place to fight.

(2) Any person who maliciously and willfully disturbs another person by loud and unreasonable noise.

(3) Any person who uses offensive words in a public place which are inherently likely to provoke an immediate violent reaction.

California Penal Code - 415 (Penal Code – A.K.A. – Criminal Code)

California defined “Disturbing the Peace” as:

(1) Any person who unlawfully fights in a public place or challenges another person in a public place to fight.

(2) Any person who maliciously and willfully disturbs another person by loud and unreasonable noise.

(3) Any person who uses offensive words in a public place which are inherently likely to provoke an immediate violent reaction.

Question: What do you notice changed about California’s definition of “Disturbing the Peace”?

California Penal Code 415(1) - Fighting

The legal definition of disturbing the peace through unlawful fighting consists of two facts (known as "elements of the crime"). Both of these elements must be proven for you to be guilty of this form of disturbing the peace. They are:

1. that you willfully and unlawfully fought another person (or challenged another person to fight), and

2. that the fight or challenge took place in a public place.

"Willfully" means deliberately or on purpose.

California Penal Code 415(1) - Fighting Common Scenario….

Rick is a San Francisco Giants fan. He spends a lot of time in a sports bar where many Giants fans hang out. One night, after having a few drinks at the bar, Rick sees Jorge walk in. Jorge is wearing a Los Angeles Dodgers sweatshirt. Rick approaches Jorge and says some hostile things about the Dodgers. Then Rick challenges Jorge to a fight outside the bar. Rick may be guilty of disturbing the peace...he willfully challenged Jorge to a fight, and he did it in a public place (a bar).

California Penal Code 415(1) - Fighting “Defending Yourself”

If you fought only because you were either 1. defending yourself, or 2. defending someone else, then you are not guilty of disturbing the peace. This is because self-defense as a legal defense under California criminal law allows you to reasonably defend yourself or another person when: 1. you reasonably believe that you or another person is about

to suffer bodily harm, 2. you reasonably believe that force is the only way to protect

against that harm, and 3. you use no more force than is reasonably necessary to

defend against the danger.

California Penal Code 415(2) – Unreasonable Noise

The elements of the legal definition of disturbing the peace through unreasonable noise are as follows: 1. that you willfully and maliciously caused loud and unreasonable noise, and 2. that the noise disturbed another person. "Maliciously" means that you have to have either: 1. intended to do something wrongful, or 2. intended to annoy or injure someone else. You don't need to have intended to break the law, per se. Also, there is a specific legal definition of what it means for your noise to "disturb another person." The noise needs to have: 1. presented a danger of immediate violence, or 2. been used for the purpose of disrupting lawful activities (rather than as a

means to communicate).

California Penal Code 415(2) – Scenario

• Keith is being followed by several police officers working on a prostitution sting who believe he might be a pimp. The officers follow Keith into a hotel late at night. Keith begins laughing very loudly in a hotel hallway, and the officers approach him. Keith then yells obscenities, very loudly, at the officers. Keith's yelling causes multiple hotel guests to wake up and come out of their rooms. Keith's behavior may have been disturbing the peace through unreasonable noise. His shouting obscenities at the officers was not meant to communicate with them (which he could have done in a normal tone of voice)...instead, it was used for the purpose of disrupting their lawful activities.

California Penal Code 415(3) – Offensive Words

The legal definition of this form of disturbing the peace is that: • you used offensive words which were inherently likely to provoke an immediate

violent reaction, and • those words were spoken in a public place. What does it mean for words to be "inherently like to provoke an immediate violent reaction"? It means that: • The speaker said something reasonably likely to provoke someone else to react

violently, AND • When s/he made the statement, there was a clear and present danger that the

other person would immediately erupt into violence. It doesn't matter whether the defendant intended to provoke a violent response from someone. However, if the defendant reasonably believed that his/her words were NOT likely to provoke an immediate violent reaction, s/he is not guilty of disturbing the peace.

This offense is what is known as the "fighting words" exception to the right of free speech that is otherwise guaranteed by the First Amendment to the United States Constitution.

California Penal Code 415(3) – Offensive Words

The courts believe that these "fighting words" are never essential to the expression of ideas . . . and that any value they may have is significantly outweighed by society's interest in order and morality.

California Penal Code 415(3) – Common Scenario

John, a 16-year-old boy, screams “F****** B****" at his neighbor Nancy as she drives past his house. Nancy finds herself so enraged that she goes home and calls the police.