Cohen v. California/Dissent Blackmun

by Harry Blackmun

Mr. Justice BLACKMUN, with whom THE CHIEF JUSTICE and Mr. Justice BLACK join.

1. Cohen's absurd and immature antic, in my view, was mainly conduct and little speech. See Street v. New York, 394 U.S. 576, 89 S.Ct. 1354, 22 L.Ed.2d 572 (1969); Cox v. Louisiana, 379 U.S. 536, 555, 85 S.Ct. 453, 464, 13 L.Ed.2d 471 (1965); Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 502, 69 S.Ct. 684, 690, 93 L.Ed. 834 (1949). The California Court of Appeal appears so to have described it, 1 Cal.App.3d 94, 100, 81 Cal.Rptr. 503, 507, and I cannot characterize it otherwise. Further, the case appears to me to be well within the sphere of Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942), where Mr. Justice Murphy, a known champion of First Amendment freedoms, wrote for a unanimous bench. As a consequence, this Court's agonizing over First Amendment values seem misplaced and unnecessary.

2. I am not at all certain that the California Court of Appeal's construction of § 415 is now the authoritative California construction. The Court of Appeal filed its opinion on October 22, 1969. The Supreme Court of California declined review by a four-to-three vote on December 17. See 1 Cal.App.3d, at 104, 81 Cal.Rptr., at 503. A month later, on January 27, 1970, the State Supreme Court in another case construed § 415, evidently for the first time. In re Bushman, 1 Cal.3d 767, 83 Cal.Rptr. 375, 463 P.2d 727. Chief Justice Traynor, who was among the dissenters to his court's refusal to take Cohen's case, wrote the majority opinion. He held that § 415 'is not unconstitutionally vague and overbroad' and further said:

'(T)hat part of Penal Code section 415 in question here makes punishable only wilful and malicious conduct that is violent and endangers public safety and order or that creates a clear and present danger that others will engage in violence of that nature.

'* * * (It) does not make criminal any nonviolent act unless the act incites or threatens to incite others to violence * * *.' 1 Cal.3d, at 773-774, 83 Cal.Rptr., at 379, 463 P.2d, at 731.

Cohen was cited in Bushman, 1 Cal.3d, at 773, 83 Cal.Rptr., at 378, 463 P.2d, at 730, but I am not convinced that its description there and Cohen itself are completely consistent with the 'clear and present danger' standard enunciated in Bushman. Inasmuch as this Court does not dismiss this case, it ought to be remanded to the California Court of Appeal for reconsideration in the light of the subsequently rendered decision by the State's highest tribunal in Bushman.

Mr. Justice WHITE concurs in Paragraph 2 of Mr. Justice BLACKMUN'S dissenting opinion.