Please explain this?

Question

This question deals with the Cohen v California case in which a man was charged with violating the California Penal Code, which prohibited "maliciously and willfully disturb[ing] the peace or quiet of any neighborhood or person [by] offensive conduct" when he wore a "F*** the Draft" jacket in a court to express his feelings about Vietnam. He claimed that the charge violates his freedom of expression.

my question deals with the dissenting opinion (arguing why Cohen's conviction should be upheld), where Justice Blackmun dissenting, citing 2 reasons. Can someone clarify what the second reason in his dissent means?

THE DISSENT:
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. 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, 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:

"That part of Penal Code section 415 in question here makes punishable only willful 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, 463 P. 2d, at 731.

Cohen was cited in Bushman, 1 Cal. 3d, at 773, 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.

Answer 1

The Supreme Court based its ruling, in large part, on the CA Court of Appeals interpretation of CPC 415 in the Cohen case, which the CA Supreme Court declined to review.

Cohen then appealed to the Supreme Court, who ruled that 415, as interpreted by the Court of Appeals in the instant case, was unconstitutional as applied to Cohen.

However, between the time that the CA Court of Appeals ruled in Cohen, and the time the US Supreme Court heard the case, the CA Supreme Court had agreed to hear an appeal from the CA Court of Appeals in the case of Bushman, in which they more narrowly interpreted 415.

What Justice Blackmum said in his dissent was that instead of overturning Cohen, the Supreme Court should have sent it back to the CA Court of Appeals for reconsideration in light of the CA Supreme Courts ruling in Bushman.

Richard