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1973 United States Supreme Court case
Hess v. Indiana United States Supreme Court case[ 1] First Amendment that reaffirmed and clarified the imminent lawless action test first articulated in Brandenburg v. Ohio Hess is still cited by courts to protect speech threatening future lawless action.[ 2]
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 [ 5]
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 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)
^ Hess v. Indiana , 414 U.S. 105 (1973).^ "Fighting words: Hess v. Indiana tested limits of free speech during wartime" . IU News Room, Indiana University . November 17, 2004. Retrieved May 16, 2017 .^ Hess , 414 U.S. at 108-109.^ Lynd, Staughton (1975), "Brandenburg v. Ohio: A Speech Test for All Seasons?" , University of Chicago Law Review , 43 (1): 151–191, doi :10.2307/1599194 , JSTOR 1599194 ^ Hess , 414 U.S. at 107-109
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