November 19, 2010
But while the young man’s choice of words is what got him into trouble, his use of the expletive wasn’t at the heart of the matter. Instead, it was the overall intent of his message that brought it to the attention of the highest court in the land.
In Hess v. Indiana, the Supreme Court clarified the distinction between speech that incites “imminent disorder” and speech that promotes an unlawful action in the indefinite future.
The case stemmed from an incident at Indiana University. It happened in May 1970, just a few days after the Kent State tragedy in nearby Ohio where four student protesters were killed, an event that triggered a wave of protests at more than 400 college campuses throughout the United States.
The Indiana protesters were being cleared from a street by the local police. One of the students – Gregory Hess – was walking away from the scene with a crowd of fellow protesters when he was overheard by a sheriff to say, “We’ll take the f***ing street later” (or “We’ll take the f***ing street again” – no really knows for sure).
Offended by the student’s choice of words, the sheriff promptly arrested Hess, who was convicted of violating the state’s disorderly conduct statute. Hess appealed the conviction on the grounds that the statute was unconstitutionally vague and overbroad, since it forbids speech that is protected under the First and Fourteenth amendments.
The Indiana Supreme Court had examined and rejected each of Hess’s constitutional arguments, but the U.S. Supreme Court took a close look at Hess’s statement and reached a different conclusion.
“The Indiana Supreme Court placed primary reliance on the trial court’s finding that Hess’ statement ‘was intended to incite further lawless action on the part of the crowd […] and was likely to produce such action,’” the majority opinion stated (94 S.Ct. 326).
“At best, however, the statement could be taken as counsel for present moderation; at worst, it amounted to nothing more than advocacy of illegal action at some indefinite future time. This is not sufficient to permit the State to punish Hess’ speech.”
The term “imminent lawless action” had appeared four years earlier in another Supreme Court case, 1969’s Brandenburg v. Ohio (89 S.Ct. 1827), which involved a group of Ku Klux Klan members who invited a local TV station to a rally where they brandished weapons and declared that they would “march on Congress.”
Taken together, Brandenburg and Hess mark a major turning point in free-speech doctrine, extending First Amendment protection to a class of previously unprotected speech that, while subversive, falls short of inciting unlawful behavior.
To learn more about Hess v. Indiana and other landmark free-speech decisions of the 20th century, see “Fighting words: Hess v. Indiana tested limits of free speech during wartime” on the Indiana University website.