Hess v. Indiana: A Landmark First Amendment Case

The 1973 Supreme Court case Hess v. Indiana remains a crucial precedent in First Amendment law, clarifying the boundaries of protected speech and the “imminent lawless action” standard. This case, stemming from an anti-war protest at Indiana University, continues to be cited in legal discussions surrounding free speech rights.

Background of the Case

In November 1969, during a Vietnam War protest on the campus of Indiana University Bloomington, a crowd of between 100 and 150 demonstrators gathered in the streets. As law enforcement officers worked to disperse the crowd, Gregory Hess, a participant in the protest, reportedly shouted, “We’ll seize the fucking street later” or “We’ll take the fucking street again.” [1] Hess was subsequently arrested and convicted in Indiana state court for disorderly conduct.

The Legal Challenge and Supreme Court Ruling

Hess appealed his conviction, arguing that his statement was protected under the First Amendment. The case ultimately reached the Supreme Court, which reviewed whether his speech constituted a punishable offense. The Court reversed Hess’s conviction, determining that his statement, at worst, amounted to “advocacy of illegal action at some indefinite future time.” [1]

The Court emphasized the importance of the word “imminent” within the “imminent lawless action” test established in the 1969 case Brandenburg v. Ohio. The Brandenburg test requires that speech advocating illegal action must be directed to inciting or producing imminent lawless action and be likely to incite or produce such action. [1] Hess’s statement lacked this element of immediacy.

Key Implications and Lasting Impact

Hess v. Indiana reaffirmed and clarified the Brandenburg standard, providing crucial guidance on the limits of permissible speech regulation. The ruling underscored that the government cannot punish speech simply because it advocates for future illegal activity; there must be a clear and present danger of imminent lawless action. [1]

The case continues to be relevant today, serving as a key reference point for courts evaluating free speech claims, particularly those involving protests and political expression. [2]

Court Membership

The 1973 Supreme Court consisted of:

• Chief Justice: Warren E. Burger
• Associate Justices: William O. Douglas, William J. Brennan Jr., Potter Stewart, Byron White, Thurgood Marshall, Harry Blackmun, Lewis F. Powell Jr., William Rehnquist

The decision was delivered per curiam, with Justice Rehnquist dissenting.