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Written by Kevin R. Davis, last updated on September 19, 2023

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In Hess v. Indiana, 414 U.S.105 (1973), the Supreme Court overturned the conviction of a demonstrator in affirming that advocacy of illegal activity in the indefinite future is protected by the First Amendment. As police cleared a street of anti-war demonstrators in Bloomington, Indiana, defendant Gregory Hess, standing on the curb, yelled, “We’ll take the fucking street again [or later].”


Hess convicted for yelling threat during anti-war protest

Authorities charged him with violating the state’s disorderly conduct statute, and a jury convicted him. Hess challenged the prosecution on the grounds that the statute in question was unconstitutionally vague, overly broad on its face, and a violation of the First Amendment. The Indiana Supreme Court upheld his conviction.


Supreme Corut said First Amendment protected Hess’s speech

In a per curiam decision, the Court overturned Hess’s conviction, ruling that he had been wrongly prosecuted because his speech was protected. The Court’s reasoning turned on its construction of the facts in the case. In reviewing the record, the justices disagreed with the inferences drawn by the Indiana Supreme Court, which had accepted the trial court’s determination that Hess intended to incite further lawless action and was likely to do so. The justices, however, concluded that Hess did not address any particular person or group with his speech, that he was not speaking louder than other demonstrators, and that he was arrested because of the particular words he used.


The Court inferred that Hess’s speech could reasonably be construed as, at best, a plea for moderation on the part of the crowd or, at worst, advocacy of illegal activity in the indefinite future. Either way, the arrest was an unconstitutional infringement of Hess’s First Amendment right of free speech. The Court determined that Hess’s speech could not be characterized as fitting within one of the narrow First Amendment exceptions that would permit his prosecution, such as for obscenity, based on Roth v. United States (1957); for fighting words, as in Chaplinsky v. New Hampshire (1942); or for violating privacy interests, based on Cohen v. California (1971).


Hess’s speech was not intended to incitement imminent lawless action

The Court also reasoned alternatively that had Hess’s speech been viewed as advocacy for illegal action on the crowd’s part, it was, at most, advocacy for action at an indefinite future time. Applying the Brandenburg v. Ohio (1969) incitement test, the Court held that because Hess’s speech was not intended to incite imminent, further lawless action on the part of the crowd, or likely to produce such action, the state lacked sufficient grounds to punish the speech.


Three justices, led by William H. Rehnquist, disagreed with the Court’s construction of, and right to construe, the factual record. Rehnquist argued that the record permitted a reasonable inference that Hess was, in fact, advocating imminent illegal conduct against the police and that the Indiana courts’ interpretation of the evidence should be accepted. The dissenters did not, however, question the Court’s interpretation of applicable First Amendment precedent.


This article was published in 2009 while Kevin R. Davis was Associate General Counsel at Vanderbilt University. He is now Senior Counsel at HealthTrust Purchasing Group.


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