1973 United States Supreme Court case
Hess v. Indiana , 414 U.S. 105 (1973), was a United States Supreme Court case[ 1] involving the First Amendment that reaffirmed and clarified the imminent lawless action test first articulated in Brandenburg v. Ohio (1969). Hess is still cited by courts to protect speech threatening future lawless action.[ 2]
The case involved an antiwar protest on the campus of Indiana University Bloomington . Between 100 and 150 protesters were in the streets. The sheriff and his deputies then proceeded to clear the streets of the protestors. As the sheriff was passing Gregory Hess, one of the members of the crowd, Hess uttered, "We'll take the fucking street later" or "We'll take the fucking street again." Hess was convicted in Indiana state court of disorderly conduct.
The Supreme Court reversed Hess's conviction because Hess' statement, at worst, "amounted to nothing more than advocacy of illegal action at some indefinite future time." In contrast to such an indefinite future time, the Court emphasized the word imminent in the "imminent lawless action" test of Brandenburg . Because the evidence did not show that Hess' speech was intended and likely to produce "imminent disorder", the state could not punish Hess' speech.[ 3] [ 4]
In addition, Hess' speech was not directed at any particular person or group. As a result, "it cannot be said that he was advocating, in the normal sense, any action." For similar reasons, Hess' speech also could not be considered "fighting words " under Chaplinsky v. New Hampshire (1942).[ 5]
Clear and present danger List of United States Supreme Court cases, volume 414 Shouting fire in a crowded theater Abrams v. United States , 250 U.S. 616 (1919) Chaplinsky v. New Hampshire , 315 U.S. 568 (1942) Dennis v. United States , 341 U.S. 494 (1951) Feiner v. New York , 340 U.S. 315 (1951) Kunz v. New York , 340 U.S. 290 (1951) Masses Publishing Co. v. Patten , 244 F. 535 (S.D.N.Y. 1917) Schenck v. United States , 248 U.S. 47 (1919) Terminiello v. Chicago , 337 U.S. 1 (1949) Whitney v. California , 274 U.S. 357 (1927) ^ Hess v. Indiana , 414 U.S. 105 (1973). ^ "Fighting words: Hess v. Indiana tested limits of free speech during wartime" . IU News Room, Indiana University . November 17, 2004. Retrieved May 16, 2017 . ^ Hess , 414 U.S. at 108-109. ^ Lynd, Staughton (1975), "Brandenburg v. Ohio: A Speech Test for All Seasons?" , University of Chicago Law Review , 43 (1): 151–191, doi :10.2307/1599194 , JSTOR 1599194 ^ Hess , 414 U.S. at 107-109
Public displays and ceremonies Statutory religious exemptions Public funding Religion in public schools Private religious speech Internal church affairs Taxpayer standing Blue laws Other
Unprotected speech
Incitement and sedition Defamation andfalse speech Fighting words and the heckler's veto True threats Obscenity Rosen v. United States (1896) United States v. One Book Called Ulysses (S.D.N.Y. 1933) Roth v. United States (1957) One, Inc. v. Olesen (1958) Smith v. California (1959) Marcus v. Search Warrant (1961) MANual Enterprises, Inc. v. Day (1962) Jacobellis v. Ohio (1964) Quantity of Books v. Kansas (1964) Ginzburg v. United States (1966) Memoirs v. Massachusetts (1966) Redrup v. New York (1967) Ginsberg v. New York (1968) Stanley v. Georgia (1969) United States v. Thirty-seven Photographs (1971) Kois v. Wisconsin (1972) Miller v. California (1973) Paris Adult Theatre I v. Slaton (1973) United States v. 12 200-ft. Reels of Film (1973) Jenkins v. Georgia (1974) Southeastern Promotions, Ltd. v. Conrad (1975) Erznoznik v. City of Jacksonville (1975) Young v. American Mini Theatres, Inc. (1976) Vance v. Universal Amusement Co., Inc. (1980) American Booksellers Ass'n, Inc. v. Hudnut (7th Cir. 1985) People v. Freeman (Cal. 1988) United States v. X-Citement Video, Inc. (1994) Reno v. ACLU (1997) United States v. Playboy Entertainment Group, Inc. (2000) City of Los Angeles v. Alameda Books, Inc. (2002) Ashcroft v. ACLU I (2002) United States v. American Library Ass'n (2003) Ashcroft v. ACLU II (2004) Nitke v. Gonzales (S.D.N.Y. 2005) United States v. Williams (2008) American Booksellers Foundation for Free Expression v. Strickland (6th Cir. 2009) United States v. Kilbride (9th Cir. 2009) United States v. Stevens (2010) Brown v. Entertainment Merchants Ass'n (2011) FCC v. Fox Television Stations, Inc. (2012) Free Speech Coalition v. Paxton (2025) Speech integral to criminal conduct
Strict scrutiny Overbreadth Vagueness Symbolic speech versus conductContent-based restrictions Content-neutral restrictions
Compelled speech Compelled subsidy of others' speech
Government grants and subsidies Government as speaker Loyalty oaths School speech Public employees Hatch Act and similar lawsLicensing and restriction of speech Commercial speech Valentine v. Chrestensen (1942) Rowan v. U.S. Post Office Dept. (1970) Pittsburgh Press Co. v. Pittsburgh Comm'n on Human Relations (1973) Lehman v. Shaker Heights (1974) Goldfarb v. Virginia State Bar (1975) Bigelow v. Virginia (1975) Virginia State Pharmacy Bd. v. Virginia Citizens Consumer Council (1976) Linmark Assoc., Inc. v. Township of Willingboro (1977) Carey v. Population Services International (1977) Bates v. State Bar of Arizona (1977) In re Primus (1978) Ohralik v. Ohio State Bar Association (1978) Friedman v. Rogers (1979) Consol. Edison Co. v. Public Serv. Comm'n (1980) Central Hudson Gas & Electric Corp. v. Public Service Commission (1980) Metromedia, Inc. v. San Diego (1981) In re R.M.J. (1982) Hoffman Estates v. The Flipside, Hoffman Estates, Inc. (1982) Zauderer v. Off. of Disciplinary Counsel of Supreme Court of Ohio (1985) Pacific Gas & Electric Co. v. Public Utilities Comm'n of California (1986) Posadas de Puerto Rico Assoc. v. Tourism Co. of Puerto Rico (1986) San Francisco Arts & Athletics, Inc. v. U.S. Olympic Committee (1987) Shapero v. Kentucky Bar Association (1988) Riley v. Nat'l Fed'n of the Blind (1988) State University of New York v. Fox (1989) Peel v. Attorney Registration and Disciplinary Commission of Illinois (1990) City of Cincinnati v. Discovery Network (1993) Edenfield v. Fane (1993) United States v. Edge Broadcasting Co. (1993) Ibanez v. Florida Dept. of Business and Professional Regulation, Bd. of Accountancy (1994) Lebron v. National Railroad Passenger Corp. (1995) Rubin v. Coors Brewing Co. (1995) Florida Bar v. Went For It, Inc. (1995) 44 Liquormart, Inc. v. Rhode Island (1996) Glickman v. Wileman Brothers & Elliot, Inc. (1997) Greater New Orleans Broadcasting Assn., Inc. v. United States (1999) Los Angeles Police Department v. United Reporting Publishing Co. (1999) United States v. United Foods Inc. (2001) Lorillard Tobacco Co. v. Reilly (2001) Thompson v. Western States Medical Center (2002) Nike, Inc. v. Kasky (2003) Johanns v. Livestock Marketing Ass'n (2005) Tennessee Secondary School Athletic Assn. v. Brentwood Academy (2007) Milavetz, Gallop & Milavetz, P.A. v. United States (2010) Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich LPA (2010) Sorrell v. IMS Health Inc. (2011) Expressions Hair Design v. Schneiderman (2017) Matal v. Tam (2017) Iancu v. Brunetti (2019) Barr v. American Association of Political Consultants (2020) Vidal v. Elster (2024) Campaign finance and political speechAnonymous speech State action Official retaliation Boycotts Prisons
Organizations Future Conduct Solicitation Membership restriction Primaries and elections