## Facts

- During an anti–Vietnam War demonstration on the Indiana University campus, 100–150 protesters entered a public street and blocked traffic.
- The sheriff ordered the street cleared; demonstrators moved to the curbs, joining a larger crowd of observers.
- Gregory Hess stood off the street as the sheriff passed and loudly uttered a profane statement later stipulated to be either “We’ll take the fucking street later” or “We’ll take the fucking street again.”
- Two nearby witnesses testified that Hess did not appear to urge the crowd back into the street, faced the crowd (not the street), did not address any particular person or group, and was no louder than others nearby.
- Hess was arrested and convicted under Indiana’s disorderly conduct statute based solely on his words; Indiana appellate courts affirmed, finding the statement intended and likely to incite lawless action.

## Issues

1. Whether Indiana could constitutionally apply its disorderly conduct statute to punish Hess’s protest remark consistent with the First and Fourteenth Amendments.
2. Whether Hess’s words fell within an unprotected category of speech, including incitement to imminent lawless action or fighting words.
3. Whether the disorderly conduct statute was unconstitutionally vague or overbroad on its face.

## Decision

- The Supreme Court reversed Hess’s conviction in a per curiam decision.
- The Court held that Hess’s words did not fall within any narrowly limited category of unprotected speech.
- The Court concluded there was no evidence the statement was directed to inciting or producing imminent lawless action, or likely to produce imminent disorder.
- The Court did not decide the facial vagueness and overbreadth challenges because the conviction failed on the narrower as-applied First Amendment ground.
- Justice Rehnquist, joined by the Chief Justice and Justice Blackmun, dissented, arguing state courts could reasonably infer intent and likely effect from the record.

## Legal Principles

- States may punish words only if they fall within narrowly limited classes of unprotected speech (e.g., obscenity, fighting words, or incitement meeting constitutional standards).
- Under the incitement standard, speech is punishable only if it is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.
- Advocacy of illegal action at an indefinite future time, without evidence of intent and likelihood of imminent disorder, remains protected speech.
- Profanity in public protest is not, by itself, fighting words; fighting words typically involve personally abusive epithets directed at an individual in a manner likely to provoke immediate violence.
- When a conviction can be resolved on an as-applied First Amendment basis, a court may decline to reach broader facial challenges to the statute.

## Conclusion

The Court held that Indiana violated the First Amendment by convicting Hess for a profane remark at a protest where the statement was not directed at any person or group and did not constitute incitement to imminent lawless action or other unprotected speech.


Hess v. Indiana, 414 U.S. 105 (1973)