HESS v. INDIANA
No. 73-5290.
Decided November 19, 1973
Per Curiam.
Gregory Hess appeals from his conviction in the Indiana courts for violating the State's disorderly conduct statute. Appellant contends that his conviction should be reversed because the statute is unconstitutionally vague, Connally v. General Construction Co., 269 U. S. 385 (1926), because the statute is overbroad in that it forbids activity that is protected under the First and Fourteenth Amendments, Gooding v. Wilson, 405 U. S. 518 (1972), and because the statute, as applied here, abridged his constitutionally protected freedom of speech, Terminiello v. Chicago, 337 U. S. 1 (1949). These contentions were rejected in the City Court, where Hess was convicted, and in the Superior Court, which reviewed his conviction. The Supreme Court of Indiana, with one dissent, considered and rejected each of Hess’ constitutional contentions, and accordingly affirmed his conviction.
The events leading to Hess’ conviction began with an antiwar demonstration on the campus of Indiana University. In the course of the demonstration, approximately 100 to 150 of the demonstrators moved onto a public street and blocked the passage of vehicles. When the demonstrators did not respond to verbal directions from the sheriff to clear the street, the sheriff and his deputies began walking up the street, and the demonstrators in their path moved to the curbs on either side, joining a large number of spectators who had gathered. Hess was standing off the street as the sheriff passed him. The sheriff heard Hess utter the word “fuck” in what he later described as a loud voice and immediately arrested him on the disorderly conduct charge. It was later stipulated that what appellant had said was “We’ll take the fucking street later,” or “We’ll take the fucking street again.” Two witnesses who were in the immediate vicinity testified, apparently without contradiction, that they heard Hess’ words and witnessed his arrest. They indicated that Hess did not appear to be exhorting the crowd to go back into the street, that he was facing the crowd and not the street when he uttered the statement, that his statement did not appear to be addressed to any particular person or group, and that his tone, although loud, was no louder than that of the other people in the area.
Indiana’s disorderly conduct statute was applied in this case to punish only spoken words. It hardly needs repeating that “[t]he constitutional guarantees of freedom of speech forbid the States to punish the use of words or language not within 'narrowly limited classes of speech.’ ” Gooding v. Wilson, supra, at 521-522. The words here did not fall within any of these “limited classes.” In the first place, it is clear that the Indiana court specifically abjured any suggestion that Hess’ words could be punished as obscene under Roth v. United States, 354 U. S. 476 (1957), and its progeny. Indeed, after Cohen v. California, 403 U. S. 15 (1971), such a contention with regard to the language at issue would not be tenable. By the same token, any suggestion that Hess’ speech amounted to “fighting words,” Chaplinsky v. New Hampshire, 315 U. S. 568 (1942), could not withstand scrutiny. Even if under other circumstances this language could be regarded as a personal insult, the evidence is undisputed that Hess’ statement was not directed to any person or group in particular. Although the sheriff testified that he was offended by the language, he also stated that he did not interpret the expression as being directed personally at him, and the evidence is clear that appellant had his back to the sheriff at the time. Thus, under our decisions, the State could not punish this speech as “fighting words.” Cantwell v. Connecticut, 310 U. S. 296, 309 (1940); Cohen v. California, supra, at 20.
In addition, there was no evidence to indicate that Hess’ speech amounted to a public nuisance in that privacy interests were being invaded. “The ability of government, consonant with the Constitution, to shut off discourse solely to protect others from hearing it is . . . dependent upon a showing that substantial privacy interests are being invaded in an essentially intolerable manner.” Cohen v. California, supra, at 21. The prosecution made no such showing in this case.
The Indiana Supreme Court placed primary reliance on the trial court’s finding that Hess’ statement “was intended to incite further lawless action on the part of the crowd in the vicinity of appellant and was likely to produce such action.” — Ind. -, -, 297 N. E. 2d 413, 415 (1973). At best, however, the statement could be taken as counsel for present moderation; at worst, it amounted to nothing more than advocacy of illegal action at some indefinite future time. This is not sufficient to permit the State to punish Hess’ speech. Under our decisions, “the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Brandenburg v. Ohio, 395 U. S. 444, 447 (1969). (Emphasis added.) See also Terminiello v. Chicago, 337 U. S., at 4. Since the uncontroverted evidence showed that Hess’ statement was not directed to any person or group of persons, it cannot be said that he was advocating, in the normal sense, any action. And since there was no evidence, or rational inference from the import of the language, that his words were intended to produce, and likely to produce, imminent disorder, those words could not be punished by the State on the ground that they had “a 'tendency to lead to violence.’ ” - Ind., at -, 297 N. E. 2d, at 415.
Accordingly, the motion to proceed in forma pauperis is granted and the judgment of the Supreme Court of Indiana is reversed.
“Whoever shall act in a loud, boisterous or disorderly manner so as to disturb the peace and quiet of any neighborhood or family, by loud or unusual noise, or by tumultuous or offensive behavior, threatening, traducing, quarreling, challenging to fight or fighting, shall be deemed guilty of disorderly conduct, and upon conviction, shall be fined in any sum not exceeding five hundred dollars [$500] to which may be added imprisonment for not to exceed one hundred eighty [180] days.” Ind. Code 35-27-2-1 (1971), Ind. Ann. Stat. §10-1510 (Supp. 1972).
The State contends that Hess failed to preserve his constitutional contentions in the state courts. But the record demonstrates that Hess moved to quash the affidavit for disorderly conduct in the City Court on the constitutional grounds that he is asserting in this Court. The State points out that, on appeal to the Superior Court, appellant received a trial de novo and did not again move to quash the affidavit in that court. But the refusal of the City Court to quash the affidavit was asserted as error by Hess on his appeal to the Superior Court, and his memorandum in support of his appeal pressed the constitutional contentions. Since the Supreme Court of Indiana considered and resolved each of Hess’ constitutional contentions, it is apparent that it regarded Hess’ actions in the state courts as sufficient under state law to preserve his constitutional arguments on appeal.
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