On April 26, 1968, Paul Robert Cohen was observed in a corridor of a Los Angeles courthouse wearing a jacket bearing the words “F… the Draft”. He was sentenced at first instance to 30 days in prison, a sentence upheld by an appellate court, for “maliciously and willfully disturbing the peace […] by offensive conduct“. The incident took place about one month after President Lyndon Johnson’s decision to double the US military presence in Vietnam to 500,000, which, according to military advice would enable US to defeat the Viet Cong, North Vietnam’s guerilla.
In the end, Cohen won his case on appeal to the Supreme Court, Cohen v. California, 403 U.S. 15 (1971). The court accepted his position that “the words were on the jacket as a means of informing the public of the depth of his feelings against the Vietnam War and the draft”. While his punishment was connected to his behavior, in reality, this was a violation of his right to freedom of expression, protected by the first amendment of the US constitution.
The case of Cohen v. California is of particular importance and value as it can serve as a guide to distinguish freedom of expression/communication fro conduct. Such distinction reserves a special, a privileged treatment to the right of free expression when judging actions and behavior. I believe that this adds a new dimension and course of action to the way the Supreme Council of Judicature (SCJ) dealt with acts and the conduct of the Auditor General Odysseas Michaelides. A complete sidelining and the cancellation of Mr Michaelides’ right to freedom of expression was done through the transformation of communication into behavior. This conversion fundamentally altered the basis and criteria of the judgment.
In reviewing Cohen’s appeal, the Supreme Court noted that in his conviction it was stated that, neither Cohen nor anyone in the audience engaged or threatened to engage in any act of violence as a result of his conduct, and that, “it was certainly reasonably foreseeable that such conduct might cause others to rise up to commit a violent act against the person of the defendant or attempt to forcibly remove his jacket.”
Based on the above, the Supreme Court concludes: The only “conduct” which the State sought to punish is the fact of communication. Thus, we deal here with a conviction resting solely upon “speech”. Therefore, the judgment must be made on the way he exercised his right to free expression.
In connection to the way and content of Cohen’s protest, the Court reminds the rule that “governmental bodies may not prescribe the form or content of individual expression.” This quotation by the court is not only an interesting point to make, it is also indicative of the framework we must adopt for interpreting freedom of expression.
Cohen v. Supreme Council of Judicature (SCJ)
By its decision, the Supreme Court of the USA, clearly sets a principle on how to approach acts; before deciding a case, we must first define and distinguish between facts of communication / expression and conduct. At the same time, from an event, which at first sight stood out as an issue of conduct (Cohen was wearing, bears and displays “F… the Draft”) or even of potential behavior or (a cause of) reactions, the Supreme Court completely removed the dimension ‘conduct’, it retained the dimension ‘communication’ and, thus, it imposed to be judged in terms of a fact of freedom of expression. With the established fundamental principle of law that freedom of expression must be treated as favorably as possible when compared to other rights, the citizens’ scope of action is clearly broadened.
In the case of the dismissal of Odysseus Michaelides, almost all the matters for which he was judged were facts of communication, issues of expression. There were no purely behavioral incidents, but the SCJ characterized everything as ‘conduct’ and reach its decision for ‘misconduct’. The critical question to raise here is “which rule of law allows us to transform expression /communication into behavior” and apply in the judgement of the respective actions other criteria than those applicable to free expression matters?
The SDJ invoked effects, damages that institutions or persons may have suffered from the actions or omissions of the Auditor General; it arbitrarily evaluated as damage evidence that was not proved as such by any authority of justice, science or other. Have the Attorney General and his Deputy been harmed by Michaelides and not by their own actions and omissions that are subject to no check of control? None of those who were mentioned as “victims” of the Auditor General’s speech has appealed to the courts or any other authority to prove damage and claim their rights. We can’t know in advance whether such an appeal would succeed or not. It is clear and certain, however, that any judgment on the matter needed to be made in terms of “restrictions on the right to freedom of expression” and not according to the nebulous “misconduct”. In this context, a decision to restrict freedom of expression, a right “every person” has (nowhere is there a restriction for the Auditor General or anyone else), had to prove that the restriction is clearly stated in the law, that it serves a superior right than expression, and, above all, that it is necessary in a democratic society. In a documented way, not arbitrarily.
In the same logic, setting aside freedom of expression in favor of conduct, the SCJ adopted the position that the Auditor General should have expressed himself publicly on online publications by “a group of friends”. I find this position extremely paradoxical, which imposes an obligation on “compelled expression”, turning the right to freedom of expression into a compulsory expression. Which rule of law sets such an obligation? The SCJ makes use of a “contradiction” in the behavior of the Auditor General, because he positioned himself when an attack to a person related to media took place. In terms of freedom of expression, yes, it is my right to take or not take a position on an issue or to take contradictory positions. By turning the matter into “conduct”, the justices made expression punishable with the penalty of dismissal. Contradictory behavior, however, is a daily, a universal phenomenon, it concerns everyone, including judges! The cases of pensions remain fresh in our memory: For some (…it happened to be about privileged persons), pension is an asset, a respected one; in a subsequent decision, however, this right of the many ceased to be inviolable.
It is critically problematic and dangerous for Democracy and the Rule of Law to set aside the right to freedom of expression. Even more dangerous is to reduce communication / freedom of expression to behavior and judge it in terms of behavior. In such a case, high demands for its limitation are set aside and freedom of expression is cancelled; all communication is turned into a punishable act, forcing people to silence.
I believe that the provision and the whole structure surrounding misconduct are historically and legally obsolete, extremely dangerous for Democracy. They leave enormous scope for arbitrary judgments that encroach on fundamental rights. Is it a coincidence that the precedents to support the case, invoked by the SCJ belong to a colony, a former colony and Scotland? Of course, they are accepted as precedents, but why were they applied so restrictively? Why was the judgment and decision not extended within the framework of fundamental principles of the Convention (ECHR) and ECtHR caselaw? Why was the aspect of freedom of expression suppressed, while one can, logically and according to the principles of Law, argue that for reasons of public interest the Audit General had the right AND the obligation to speak out and question opinions by the unchecked attorneys?
Indeed, when viewed within its general context, the absence of any dialectic and confrontation of arguments, the monomaniacal demolition of the accused, in a decision with a catalytic effect that is not open to appeal, the decision does not treat justice and the Rule of Law with respect. At all.
Article published in Kathimerini, 24 Ocotber 2024 and Politis, 16 October 2024