Harlan was still not sure how he would vote the next day, but he admitted that he now saw the case in a different light. The war was a continuing subject of protest. That protest was an exercise of free speech. And the various levels of government—federal, state and local—were doing their best to curtail that protest. Why should a jacket be different from a flag sculpture? Perhaps he was being inconsistent.
At conference the next afternoon, the Chief referred to the case as the "screw the draft" case. He voted to uphold the conviction. To everyone's surprise, Black's position had changed drastically. He did not offer his absolutist position. Instead, he agreed with the Chief: this was a question not of political speech but rather of the pernicious use of a vile word. Cohen's jacket slogan was not protected "speech," but unprotected "conduct," he said. Cohen could be prosecuted.
With his most boisterous drawl, Black claimed that he was not deviating from his absolutism. Conduct was different from speech. His favorite example was picketing a courthouse. It was unacceptable
conduct,
not speech. People could not "tramp up and down the streets by the thousands" and threaten others, for example.
Douglas and the other First Amendment liberals—Brennan, Stewart and Marshall, who grumbled that it wasn't a case worth "giving blood on"—all lined up in favor of reversing the conviction. White and Blackmun sided with the Chief and Black.
Harlan provided the day's second surprise. He had thought it over, and he was now leaning toward overturning the conviction. But he was still not sure. He wanted the case put over for a week. He needed more time to consider it
The others agreed.
Douglas's clerk joked about how the "magic word" set off such severe reactions in the "Bad B's," as he referred to Black, Burger and Blackmun. Douglas was disappointed that Black had deserted his long-standing First Amendment position. Perhaps Black was simply too old to understand these issues any more, to pursue the reasoning necessary to draw consistent parallels. But Harlan's hesitation offered little encouragement. He would likely end up voting to uphold the conviction. He too was out of touch with the country. The key would be Black, Douglas figured.
Black's clerks kept a constant pressure on their boss to revise his stance, but the word
fuck
offended Black's moral sensibilities. For all the freedoms he espoused, Black was priggish, especially about vulgar language. Never had his son heard him utter an obscene word. "Crook" was his strongest expletive. "What if Elizabeth [his wife] were in that corridor," he asked. "Why should she have to see that word?" Wearing the offensive jacket was conduct, not speech. The clerks could not move him.
The day before the next conference, Harlan's clerk mentioned the Cohen case. "We don't have to spend time on that," Harlan said. "I've made up my mind." He was now firm to reverse Cohen's conviction. He was determined to be consistent; the slogan was no less speech than the flag sculptures were. He could not understand Black's sensitivity to the word. "I wouldn't mind telling my wife, or your wife, or anyone's wife, about the slogan," Harlan told his clerks.
At the Friday conference, the voting went quickly, since everyone had had a week to consider. Harlan indicated that he had switched his position and would vote to reverse. Douglas, the senior member of the new 5-to-4 majority, realized that Harlan was the shakiest vote. Over the course of thirty-two years on the Court, he had learned that the best way to hold a swing vote was to assign that Justice to write the decision. "John, I'm assigning the opinion to you," Douglas said.
Harlan then said that he would prefer a narrow ruling, not one broadly declaring the use of these particular words to be protected speech.
"That's not enough for me, John," Stewart said. Like Douglas he wanted the slogan declared to be speech that was protected by the First Amendment.
Harlan assented quickly. If he wrote the decision on narrower grounds, Stewart and Douglas would concur separately and Brennan and Marshall might well join one of them. Harlan's majority would soon become a concurrence to someone else's majority.
Harlan and his clerk were pleased to have the opinion. They turned immediately to the drafting. Traditionally the Court had held that expletives like
fuck
were devoid of any social value. Suddenly to say that the word had value would certainly go beyond Harlan's previously expressed views and those of the other members. But if the slogan itself were protected, there must be some basis for protecting the words individually. The person expressing his political views ought to be able to choose from his own lexicon of expression. "One man's vulgarity is another's lyric," the clerk wrote.
When he had completed the draft, the clerk read it to Harlan and they discussed each section as they went. Harlan was generally pleased, though slow to warm to the protection afforded the word itself. He did not want to move recklessly in such a delicate field. He said that he would take the draft home overnight and reread it in his study. The next morning, Harlan announced that the draft was fine as it was. He was taking a major step, but he was behind it wholeheartedly.
The draft circulated shortly thereafter. The Chief was less than pleased when he read it in late May. He never expected to see Harlan glorifying such filth. Cohen should be spanked, and here Harlan was congratulating him.
"This case may seem at first blush too inconsequential to find its way into our books, but the issue it presents is of no small constitutional significance," Harlan's draft began.
Worse still, Harlan repeated the facts in detail, including the offending phrase, by quoting the lower court opinion. Raising such a word to a level of protected speech was more than the Chief could stomach. He sat down and scrawled out a short dissent. It helped blow off steam, but it also let his colleagues know about his strong feelings. On May
25,
he sent his dissent to the conference. "I will probably add the following, which is the most restrained utterance I can manage," the Chief's memo began. His dissent was typed on the bottom half of the page. "I, too, join in a word of protest that this Court's limited resources of time should be devoted to such a case as this. It is a measure of a lack of a sense of priorities and with all deference, I submit that Mr. Justice Harlan's 'first blush' was the correct reaction. It is nothing short of absurd nonsense that juvenile delinquents and their emotionally unstable outbursts should command the attention of this Court."
Blackmun too was deeply offended by Cohen. "Cohen's absurd and immature antic, in my view, was mainly conduct and little speech," he wrote.
Sensing the exaggerated tone of reactions, Black decided not to write an opinion; Burger dropped his own opinion and joined Blackmun's
instead; White found even Black
mun's opinion too severe and joined only part of it
Burger was still angry on June
7
when the case was set for announcement. In the light-oak—paneled robing room, a messenger—selected for the task because he was taller than any of the Justices—was helping Harlan into his robe.
"John, you're not going to use 'that word' in delivering the opinion, are you?" Burger asked.
Harlan had been deeply amused at Burger's concern. He had no intention of uttering the word aloud in open court, but he sidestepped the question. He enjoyed "twitting" the Chief, as he called it.
"It would be the end of the Court if you use it, John," the Chief asserted.
Harlan chuckled. It was time for Court. They paraded out the door after the Chief in order of seniority—Black, Douglas, and then Harlan—along a red carpet placed in the hall between the robing room and the courtroom. As the case was announced, Harlan bent over in his chair to review his notes, his forehead almost touching the bench as his eyes strained to read. He straightened up and repeated most of it from memory. His occasional sideways glances to see if the Chief was still paying attention were almost imperceptible. The Chief sat in rigid and pained stoicism, waiting for the offending word. Harlan paused, glanced again at the Chief, and proceeded, still without uttering the word. Finally, he finished without ever using it.
Tuesday, April
20,
was a long day for the Chief. It was 6
p.m
. when he finally got around to hearing an emergency petition from the Justice Department seeking reinstatement of a lower court order to evict more than a thousand Vietnam Veterans Against the War who were camping on the Mall in Washington.
Solicitor General Griswold argued that the veterans posed a real danger to security because antiwar protesters had advertised plans to shut down the city. Former Attorney General Ramsey Clark, the son of retired Supreme Court Justice Tom Clark, appeared for the veterans. He argued that the government had no business anticipating unlawful conduct.
Burger reinstated the order to evict the veterans, but given the late hour, he said, the order would not be effective until the next day. Justice Department lawyers, convinced that Burger's order would be appealed the next day to the full Court, were reluctant to evict the veterans, who had been peaceful so far.
Just before noon the following day, a dozen veterans delivered a letter to Burger's chambers decrying his decision. Protests at the Court were a new phenomenon, but the Chief's response to the delegation milling around the large entrance hall awaiting his reaction was quick and to the point. The Court police gave the demonstrators one minute to leave the building and then arrested them.
Inside, the Court was hearing oral argument on its last regularly scheduled case of the day. Next, they would hear the appeal of the Chief's decision the day before. Suddenly, a uniformed veteran stood silently, his right fist clenched in the air. A marshal scurried down the aisle and directed him to sit down. The veteran refused. A scuffle ensued.
The lawyer arguing the case did his best to hold the attention of the nine wide-eyed Justices watching over his shoulder the marshals forcibly ejecting the veteran from the audience. On the way out, the man shouted: "Remember the Vets!"
As the veterans' injunction case was called, Douglas rose and left the courtroom. He had to recuse himself from this case. Ramsey Clark's law firm had represented him during the impeachment hearings.
At the conference following the argument, Stewart and Marshall made it clear that they were irritated. Since the ban was not to take effect until later, there had been no reason for the Chief to have acted alone the day before. The full Court could have been convened. Now, if the majority disagreed, they would have to overrule the Chief, embarrassing both him and the Court. The Court had overridden only one such decision in the past twenty years.
Stewart and Marshall were concerned that the Justices were being asked to do the dirty work of the Executive Branch. The Court could become a tool for the Nixon administration's suppression of war opposition. And the case was precisely the sort that Stewart feared. Normally, the Justices had the luxury of time. They watched an issue mature as it made its way up to them, and by the time it arrived, the lawyers had sifted the issues. In this instance the Court's action would be part of a still unfolding drama.
Marshall urged that they reject the Justice Department's plea, because it was based on the presumption that the veterans were going to break the law. The Nixon administration was seeking to govern with Court injunctions.
The others—Black, Harlan, Brennan, White and Blackmun—were unhappy. If the government was correct, the antiwar protesters were going to close Washington. If the government was wrong, the Justices would be evicting a peaceful group before their protest was over. But to overrule him would be a personal affront to the Chief. And they were willing to stand with him. Stewart and Marshall decided not to publish their disagreement. A unanimous order reaffirming Burger's initial order was signed and distributed by
5 p.m.
The veterans voted
480
to
400
to stay on the Mall. They would not be forced out. Though armed with the Supreme Court order it had so desperately sought, the administration decided not to evict them. Harlan was struck by Nixon's willingness to force an issue and then, after he had gotten grudging approval, to back down. These were self-inflicted wounds, Harlan said.
Shortly before nine o'clock the next morning, several hundred veterans appeared at the Court to demand that it rule on the constitutionality of the war. About
150
of them stood on the Court's steps, leaving a fifteen-foot corridor in the center leading to the two huge sliding bronze doors. They clasped their arms around one another and, shoulder to shoulder, swayed side-to-side singing "God Bless America" and reciting the Pledge of Allegiance. "All we are saying is rule on the war now!" they chanted, brandishing toy M
-16
rifles and waving American flags.
Inside, Burger was informed of the demonstration. He ordered Perry Lippett, Marshal of the Court, to have the steps cleared. So, for the first time on a day when the Court was open, Lippett ordered the massive bronze doors closed. The doors, each with four panels tracing the evolution of the law from ancient Greece and Rome to early America, made an imposing crash as the thirteen tons of bronze slid shut.