Appellant, who was arrested during an anti-war demonstration on
a college campus for loudly stating, "We'll take the fucking street
later (or again)," was subsequently convicted for violating the
Indiana disorderly conduct statute. The State Supreme Court
affirmed, relying primarily on the trial court's finding that the
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."
Held: Appellant's language did not fall within any of
the "narrowly limited classes of speech" that the States may punish
without violating the First and Fourteenth Amendments, and, since
the evidence showed that the words he used were not directed to any
person or group and there was no evidence that they were intended
and likely to produce imminent disorder, application of the statute
to appellant violated his rights of free speech.
Brandenburg v.
Ohio, 395 U. S. 444.
See also Terminiello v. Chicago, 337 U. S.
1,
337 U. S. 4. ___
Ind. ___,
297 N.E.2d
413, reversed.
PER CURIAM.
Gregory Hess appeals from his conviction in the Indiana courts
for violating the State's disorderly conduct statute. [
Footnote 1] Appellant contends that his
conviction should be reversed because the statute is
unconstitutionally vague,
Connally v. General
Construction Co., 269 U.S.
Page 414 U. S. 106
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. [
Footnote 2] 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 anti-war
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.
Page 414 U. S. 107
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
405 U. S.
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,
Page 414 U. S. 108
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,
310 U. S. 309
(1940);
Cohen v. California, supra, at
403 U. S.
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
403 U. S. 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,
395 U. S. 447
(1969). (Emphasis added.)
See also Terminiello v. Chicago,
337 U.S. at
337 U. S. 4. Since
the uncontroverted evidence showed that Hess' statement was not
directed to any person or group of persons, it
Page 414 U. S. 109
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.
[
Footnote 1]
"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. ยง 10-1510 (Supp.
1972).
[
Footnote 2]
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.
MR. JUSTICE REHNQUIST, with whom THE CHIEF JUSTICE and MR.
JUSTICE BLACKMUN join, dissenting.
The Court's per curiam opinion rendered today aptly demonstrates
the difficulties inherent in substituting a different complex of
factual inferences for the inferences reached by the courts below.
Since it is not clear to me that the Court has a sufficient basis
for its action, I dissent.
It should be noted at the outset that the case was tried
de
novo in the Superior Court of Indiana upon a stipulated set of
facts, and, therefore, the record is perhaps unusually colorless
and devoid of life. Nevertheless, certain facts are clearly
established. Appellant was arrested during the course of an
anti-war demonstration conducted at Indiana University in May,
1970. The demonstration was of sufficient size and vigor to require
the summoning of police, and both the Sheriff's Department and the
Bloomington Police Department were asked to help university
officials and police remove demonstrators blocking doorways to a
campus building. At the time the sheriff arrived, "approximately
200-300 persons" were assembled at that particular building.
The doorways eventually were cleared of demonstrators, but, in
the process, two students were placed under arrest.
Page 414 U. S. 110
This action did not go unnoticed by the demonstrators. As the
stipulation notes,
"[i]n apparent response to these arrests, about 100-150 of the
persons who had gathered as spectators went into Indiana Avenue in
front of Bryan Hall and in front of the patrol car in which the two
arrestees had been placed."
Thus, by contrast to the majority's somewhat antiseptic
description of this massing as being "[i]n the course of the
demonstration," the demonstrators' presence in the street was not
part of the normal "course of the demonstration," but could
reasonably be construed as an attempt to intimidate and impede the
arresting officers. Furthermore, as the stipulation also notes, the
demonstrators "did not respond to verbal directions" from the
sheriff to clear the street. Thus, the sheriff and his deputies
found it necessary to disperse demonstrators by walking up the
street directly into their path. Only at that point did the
demonstrators move to the curbs.
The stipulation contains only one other declaration of fact:
that Sheriff Thrasher arrested the appellant, Gregory Hess, for
disorderly conduct. The remainder of the stipulation merely
summarizes testimony, particularly the testimony of Sheriff
Thrasher, two female witnesses (both students at Indiana
University) who were apparently part of the crowd, and Dr. Owen
Thomas, a professor of English at the university. The only
"established" facts which emerge from these summaries are that
"Hess was standing off the street on the eastern curb of Indiana
Avenue," and that he said, in the words of the trial court, "We'll
take the fucking street later (or again)." The two female witnesses
testified, as the majority correctly observes, that they were not
offended by Hess' statement, that it was said no louder than
statements by other demonstrators, "that Hess
did not
appear to be exhorting the crowd to go back into the street,"
that he was facing the crowd, and "that his statement
Page 414 U. S. 111
did not appear to be addressed to any particular person
or group." (Emphasis added.)
The majority makes much of this "uncontroverted evidence," but I
am unable to find anywhere in the opinion an explanation of why it
must be believed. Surely the sentence "We'll take the fucking
street later (or again)" is susceptible of characterization as an
exhortation, particularly when uttered in a loud voice while facing
a crowd. The opinions of two defense witnesses cannot be considered
proof to the contrary, since the trial court was perfectly free to
reject this testimony if it so desired. Perhaps, as these witnesses
and the majority opinion seem to suggest, appellant was simply
expressing his views to the world at large, but that is surely not
the only rational explanation.
The majority also places great emphasis on appellant's use of
the word "later," even suggesting at one point that the statement
"could be taken as counsel for present moderation." The opinion
continues: "[A]t worst, it amounted to nothing more than advocacy
of illegal action at some indefinite future time." From that
observation, the majority somehow concludes that the advocacy was
not directed towards inciting imminent action. But whatever other
theoretical interpretations may be placed upon the remark, there
are surely possible constructions of the statement which would
encompass more or less immediate and continuing action against the
harassed police. They should not be rejected out of hand because of
an unexplained preference for other acceptable alternatives.
The simple explanation for the result in this case is that the
majority has interpreted the evidence differently from the courts
below. In doing so, however, I believe the Court has exceeded the
proper scope of our review. Rather than considering the "evidence"
in the light most
Page 414 U. S. 112
favorable to the appellee and resolving credibility questions
against the appellant, as many of our cases have required,
* the Court has
instead fashioned its own version of events from a paper record,
some "uncontroverted evidence," and a large measure of conjecture.
Since this is not the traditional function of any appellate court,
and is surely not a wise or proper use of the authority of this
Court, I dissent.
*
See, e.g., Glasser v. United States, 315 U. S.
60,
315 U. S. 80
(1942).