Hess v. Indiana

Hess v. Indiana, 414 U.S. 105 (1973), was a United States Supreme Court case[1] involving the First Amendment that reaffirmed and clarified the imminent lawless action test first articulated in Brandenburg v. Ohio (1969). Hess is still cited by courts to protect speech threatening future lawless action.[2]

United States Supreme Court case
Hess v. Indiana

Decided November 19, 1973
Full case name Gregory Hess v. State of Indiana
Docket no. 73-5290
Citations 414 U.S.105 (more)

94 S. Ct. 326; 38 L. Ed. 2d 303; 1973 U.S. LEXIS 177
Case history
Prior Hess v. State, 260 Ind. 427, 297 N.E.2d 413 (1973)
Hess’s language did not fall within any of the “narrowly limited classes of speech” that the States may punish without violating the First and Fourteenth Amendments.
Court membership
Chief Justice
Warren E. Burger
Associate Justices
William O. Douglas · William J. Brennan Jr.
Potter Stewart · Byron White
Thurgood Marshall · Harry Blackmun
Lewis F. Powell Jr. · William Rehnquist
Case opinions
Per curiam
Dissent Rehnquist, joined by Burger, Blackmun
Laws applied
U.S. Const. amends. I, XIV

. . . Hess v. Indiana . . .

The case involved an antiwar protest on the campus of Indiana University Bloomington. Between 100 and 150 protesters were in the streets. The sheriff and his deputies then proceeded to clear the streets of the protestors. As the sheriff was passing Gregory Hess, one of the members of the crowd, Hess uttered, “We’ll take the fucking street later” or “We’ll take the fucking street again.” Hess was convicted in Indiana state court of disorderly conduct.

The Supreme Court reversed Hess’s conviction because Hess’ statement, at worst, “amounted to nothing more than advocacy of illegal action at some indefinite future time.” In contrast to such an indefinite future time, the Court emphasized the word imminent in the “imminent lawless action” test of Brandenburg. Because the evidence did not show that Hess’ speech was intended and likely to produce “imminent disorder”, the state could not punish Hess’ speech.[3][4]

In addition, Hess’ speech was not directed at any particular person or group. As a result, “it cannot be said that he was advocating, in the normal sense, any action.” For similar reasons, Hess’ speech also could not be considered “fighting words” under Chaplinsky v. New Hampshire (1942).[5]

. . . Hess v. Indiana . . .

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. . . Hess v. Indiana . . .