Law School Case Brief
Hess v. Indiana - 414 U.S. 105, 94 S. Ct. 326 (1973)
The constitutional guarantees of free speech and free press do not permit a state to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.
Upon trial in the City Court of Bloomington, Indiana, defendant Gregory Hess was convicted of violating the state's disorderly conduct statute, based on his statement "We'll take the fucking street later (or again)," made during an anti-war demonstration on a university campus while Hess was standing at the side of a street being cleared by a sheriff and his deputies. Defendant argued that application of the disorderly conduct statute to his words violated his constitutionally protected freedom of speech was rejected by the trial court,and on appeal by the Monroe Superior Court and by the Supreme Court of Indiana. Defendant sought further appellate review.
Did the application of the disorderly conduct statute to Hess’ conduct, which consisted of using certain words, violate his constitutionally protected freedom of speech?
The United States Supreme Court held that there was no evidence or rational inference that Hess’ words were intended and likely to produce imminent disorder. Therefore, Hess could not be punished for his statement on that basis. In so holding, the court determined that (1) the disorderly conduct statute had been applied to punish only spoken words; (2) the uncontroverted evidence showed that Hess’ statement was not directed to any person or group of persons and it could not be said that he was advocating, in the normal sense, any action; and (3) the statement did not fall within any of the limited classes of constitutionally unprotected speech.
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