Where the line falls between protected and unprotected speech advocating lawless action depends on the factual context. In Hess v. Indiana, the Supreme Court sought to clarify where that line should be drawn.
While clearing a crowd at an antiwar demonstration, a sheriff heard Hess say either ‘‘We’ll take the fucking street later’’ or ‘‘We’ll take the fucking street again,’’ and arrested him for disorderly conduct. Witnesses reported that Hess had stood facing the crowd without appearing to address anyone in particular, and that he had spoken no louder than any other person. The state courts rejected the argument that the First Amendment protected his speech.
The Supreme Court concluded that Hess’s statement did not come within any of the narrow classes of unprotected speech. In the circumstances, his utterance could not be considered obscene; neither could it be construed as fighting words, given that he did not direct his statement at any one person. And the statement did not amount to a public nuisance, as Hess had invaded no substantial privacy interests.
Finally, the statement was not an incitement to violence: ‘‘[A]t worst,’’ the Court concluded, ‘‘it amounted to nothing more than advocacy of illegal action at some indefinite future time.’’ Relying on Brandenburg v. Ohio (1969), the court held that such advocacy falls outside the protections of the First Amendment only when, unlike this case, the speaker aims to produce imminent lawless action and the speech is likely to produce that action.
References and Further Reading
Cases and Statutes Cited
See also Brandenburg Incitement Test; Speech and Its Relation to Violence