Hess v. Indiana
Docket: 73-5290
Court: Supreme Court of the United States; November 19, 1973; Federal Supreme Court; Federal Appellate Court
Gregory Hess appeals his disorderly conduct conviction in Indiana, arguing that the statute is unconstitutionally vague and overbroad, infringing on his First and Fourteenth Amendment rights. The Indiana courts, including the Supreme Court of Indiana, rejected these claims, affirming the conviction. The incident arose during an antiwar demonstration where Hess allegedly shouted, “We’ll take the fucking street later,” which led to his arrest by the sheriff for disturbing the peace. Witnesses testified that Hess’s comments were not directed at anyone specifically and did not incite the crowd. The Indiana court determined that Hess’s speech did not fall into any constitutionally limited categories of punishable speech, such as obscenity or fighting words, as it was not directed at any individual and was not perceived as a personal insult. Furthermore, there was no evidence that his speech constituted a public nuisance or invaded privacy interests, which would justify government action to restrict expression. The Indiana Supreme Court primarily based its decision on the trial court's conclusion that Hess’ statement was intended to provoke lawless action and was likely to do so. However, the statement could arguably be seen as advocating moderation or, at worst, merely as future advocacy of illegal action, which does not justify state punishment under constitutional free speech protections. According to established legal principles, advocacy of force or law violation is not punishable unless it incites imminent lawless action and is likely to produce such action. Since Hess’ statement was not aimed at a specific group and lacked evidence of intent to provoke immediate disorder, it could not be punished for merely having a tendency to incite violence. The court granted Hess’ motion to proceed in forma pauperis and reversed the Indiana Supreme Court's judgment. The relevant disorderly conduct statute defines disorderly behavior and penalties but does not support the State's argument regarding Hess’ failure to preserve constitutional claims. Hess had moved to quash the disorderly conduct affidavit on constitutional grounds in the City Court, and while he did not repeat this motion in the Superior Court, he asserted the refusal to quash as error on appeal. The Indiana Supreme Court acknowledged and resolved all constitutional issues raised by Hess, indicating that his actions in the state courts were adequate to preserve these arguments for appeal.