Hess v. Indiana

Hess v. Indiana
Supreme Court of the United States
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)
Holding
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, 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]

Background

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.

Decision

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]

See also

• Clear and present danger
• List of United States Supreme Court cases, volume 414
• Shouting fire in a crowded theater
• Abrams v. United States, 250 U.S. 616 (1919)
• Chaplinsky v. New Hampshire, 315 U.S. 568 (1942)
• Dennis v. United States, 341 U.S. 494 (1951)
• Feiner v. New York, 340 U.S. 315 (1951)
• Kunz v. New York, 340 U.S. 290 (1951)
• Masses Publishing Co. v. Patten, 244 F. 535 (S.D.N.Y. 1917)
• Schenck v. United States, 248 U.S. 47 (1919)
• Terminiello v. Chicago, 337 U.S. 1 (1949)
• Whitney v. California, 274 U.S. 357 (1927)

References

Further reading

• Bogaty, Lewis (1978). "Beyond Tinker and Healy: Applying the First Amendment to Student Activities". Columbia Law Review. 78 (8): 1700–1713. doi:10.2307/1121861. JSTOR 1121861.

External links

• Text of Hess v. Indiana, 414 U.S. 105 (1973) is available from: CourtListener  Findlaw  Google Scholar  Justia  Library of Congress  Oyez (oral argument audio) 
• Thomson Reuters blog post: TODAY IN 1973: SUPREME COURT EXPANDS FREE SPEECH IN HESS V. INDIANA