Hess v. Indiana

Background

A protester, Gregory Hess, was arrested during an antiwar demonstration at Indiana University after about 100–150 demonstrators moved into a street and blocked traffic. The sheriff told them to clear the street; when they did not, officers walked through the crowd and people moved to the curbs. Hess stood off the street and loudly said either 'We'll take the fucking street later' or 'We'll take the fucking street again.' Two nearby witnesses said his words were not aimed at anyone in particular, he faced the crowd, and his tone was no louder than others; the sheriff testified he was offended but did not think the words were personally directed at him.

Reasoning

The core question was whether the State could punish that spoken profanity under its disorderly conduct law. The Court said no. It explained the words did not fall into narrow exceptions like obscenity, fighting words, or invasion of privacy, and there was no evidence the remark was aimed at producing immediate violence. Citing the rule that speech can only be punished when it is intended to incite and likely to cause imminent lawless action, the Court concluded the conviction could not stand.

Real world impact

The decision limits police and state power to criminalize offensive speech at demonstrations. It protects loud or profane statements made to a crowd unless the speaker intends and is likely to produce immediate lawless action. The Court reversed the state court’s judgment, so the conviction was overturned.

Dissents or concurrances

A dissenting opinion argued the Court improperly reweighed facts, stressing the case was tried de novo on agreed facts and that reasonable inferences could support the conviction, so deference to the lower courts was warranted.