Hess v. Indiana
414 U.S. 105 (1973)
Rule of Law:
The constitutional guarantees of free speech do not permit a state to punish speech that advocates for illegal action unless that advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.
Facts:
- During an anti-war demonstration on the campus of Indiana University, approximately 100 to 150 demonstrators blocked a public street.
- After being instructed by the sheriff to clear the street, the demonstrators moved to the curbs on either side.
- As the sheriff passed by, Gregory Hess, who was standing off the street, stated in a loud voice, “We’ll take the fucking street later,” or “We’ll take the fucking street again.”
- Hess was facing the crowd of demonstrators, not the street or the sheriff, when he made the statement.
- Witnesses testified that Hess's tone, although loud, was no louder than that of others in the area and that he did not appear to be exhorting the crowd to any action.
- The sheriff immediately arrested Hess for disorderly conduct.
Procedural Posture:
- Gregory Hess was convicted of disorderly conduct in the City Court of Bloomington, Indiana.
- Hess appealed to the Superior Court of Monroe County, which reviewed his conviction.
- The Superior Court affirmed the conviction.
- Hess then appealed to the Supreme Court of Indiana, the state's highest court.
- The Supreme Court of Indiana affirmed the conviction, with one justice dissenting.
- Hess then sought review from the Supreme Court of the United States.
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Issue:
Does a conviction for disorderly conduct, based on a statement advocating illegal action at an indefinite future time, violate the speaker's rights to freedom of speech under the First and Fourteenth Amendments?
Opinions:
Majority - Per Curiam
Yes, the conviction violates the speaker's rights to freedom of speech. The State may only punish speech that falls within narrowly limited classes, and Hess's words did not qualify. His statement was not obscene under Roth v. United States, nor did it constitute 'fighting words' under Chaplinsky v. New Hampshire, as it was not a personal insult directed at any particular person. Crucially, the speech failed to meet the test for incitement established in Brandenburg v. Ohio. At worst, the statement was advocacy of illegal action at some indefinite future time, not advocacy directed to inciting or producing 'imminent' lawless action. There was no evidence that Hess's words were intended to, or likely to, produce imminent disorder.
Dissenting - Rehnquist
No, the conviction does not violate the speaker's rights to freedom of speech. The majority exceeded the proper scope of appellate review by substituting its own factual inferences for those of the Indiana courts. Given the context of a tense demonstration where lawless action had just occurred, the statement “We’ll take the fucking street later (or again)” is susceptible of characterization as an exhortation to imminent and continuing action against the police. The trial court was free to reject witness testimony suggesting otherwise and to find that the words were intended to incite further lawless action. The Supreme Court should have deferred to the factual findings of the state courts rather than fashioning its own version of events from a paper record.
Analysis:
This case significantly clarifies and reinforces the 'imminence' requirement of the Brandenburg incitement test. It establishes that speech advocating lawlessness is constitutionally protected unless it is a call for immediate action that is also likely to occur. By overturning the conviction, the Court signaled that even provocative speech made in a volatile context is protected if it does not cross the high threshold into inciting imminent illegal conduct. This decision makes it more difficult for the government to prosecute individuals for inflammatory rhetoric, requiring a direct causal link between the speech and a likely, immediate breach of the peace.
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