Hess v. Indiana

Brief Fact Summary.

Defendant was convicted of disorderly conduct when he shouted “We’ll take the fucking street later,” or “We’ll take the fucking street again,” to a group of protestors. The court of appeals and the Indiana Supreme Court affirmed. Defendant petitioned the Supreme Court of the United States to review.

Synopsis of Rule of Law.

Speech that advocates illegal activity or the use of force is protected under the First Amendment to the United States Constitution unless it is both intended and likely to provoke imminent illegal activity.

Facts.

Gregory Hess (Defendant) was arrested for disorderly conduct during an antiwar demonstration on a university campus. During the demonstration, a group of protesters gathered in the street to block passage of a police car transporting arrested protesters. A group of officers proceeded down the street and the protestors moved to the sidewalks. Defendant was arrested after one of the officers allegedly heard him shout an obscenity. Witnesses testified that Defendant had shouted “We’ll take the fucking street later,” or “We’ll take the fucking street again.” The witnesses testified that Defendant appeared to be making a general exclamation to nobody in particular, even though he was facing the crowd of protestors at the time. The witnesses also testified that Defendant’s exclamation was no louder than the shouts of others in the crowd at the time. Defendant was convicted of disorderly conduct and appealed his conviction up to the Indiana Supreme Court. The Indiana Supreme Court upheld Defendant’s conviction on a finding that his exclamation was intended to encourage the crowd to engage in illegal activity and was likely to have that effect. Defendant petitioned the Supreme Court of the United States to review.

Issue.

Whether speech that advocates illegal activity or the use of force is protected under the First Amendment to the United States Constitution when it is not both intended and likely to provoke imminent illegal activity.

Held.

Yes. The Indiana Supreme Court’s ruling is reversed. Speech that advocates illegal activity or the use of force is protected under the First Amendment to the United States Constitution unless it is both intended and likely to provoke imminent illegal activity.

Dissent.

The majority opinion inappropriately overrules the state court’s interpretation of the evidence. Undisputed evidence demonstrates that the protest grew large enough to necessitate police presence. The evidence also demonstrates that a large group of protestors gathered in the street for the purpose of obstructing the arrest of other protestors. The state court could have reasonably concluded that blocking the street represented a departure from the normal lawful course of the demonstration and was done for the purpose of threatening the arresting officers and preventing them from performing their lawful duties. The protestors repudiated verbal commands to clear the street and the police were forced to assume the risk of physical confrontation in order to move the protestors to the sidewalks. Defendant’s statement is clearly subject to interpretation as an incitement to action. The witness testimonials reflect opinion, not fact. The state court had discretion to afford whatever weight of credibility to those opinions it deemed appropriate under the totality of the evidence. The majority’s decision relies upon its own assessment of the evidence from a limited record and exceeds the scope of review that should be applied to the factual determinations of the trial court. I dissent because I believe this decision represents an improper application of the Court’s authority.

Discussion.

Our decision in Brandenburg v. Ohio, 395 U.S. 444 (1969) clearly establishes that the constitution forbids state punishment of speech that advocates unlawful activity unless, under the circumstances, the speech at issue will have the probable effect of provoking others into immediately or inevitably embarking on a course of illegal conduct. The undisputed evidence demonstrates that Defendant’s exclamation was not intended as an exhortation to any particular group of people. There is no evidence that Defendant contemplated or desired to provoke any immediate action as a result of his exclamation. As such, the statement is constitutionally protected speech and cannot be penalized by the state.