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Ryan Piurek
IU Media Relations

Lesa Petersen
School of Law-Bloomington

Last modified: Wednesday, November 17, 2004

Fighting words: Hess v. Indiana tested limits of free speech during wartime

NOTE: The Indiana University School of Law-Bloomington will host a panel discussion of Hess v. Indiana on Friday (Nov. 19) from 3 to 5 p.m. in the school's Moot Court Room. Scheduled panelists include Gregory Hess; his attorneys Patrick Baude and Tom Schornhorst, who are School of Law professors; and other key jurists from the case.

BLOOMINGTON, Ind. -- It would turn out to be an innocent use of the f-word, defying conventional wisdom that suggests free speech is one of wartime's great casualties.

In May 1970, police arrested Gregory Hess during a student anti-war protest on the campus of Indiana University Bloomington. A sheriff overheard Hess utter an obscenity-laced statement exhorting the crowd of about 150 demonstrators to retake a street that police had just cleared. Police charged Hess with disorderly conduct.

Hess was convicted in city court, and the Indiana Supreme Court upheld the lower court's ruling that Hess' words were intended to incite and likely to produce further lawless action on the part of the crowd. But in 1973, the U.S. Supreme Court overturned Hess' conviction on the grounds that his speech was protected because it was not obscene and did not amount to "fighting words." The U.S. Supreme Court also ruled that Hess' speech, taken in context, was unlikely to produce any "imminent disorder." (It was later determined that Hess actually said the crowd could take the street "later" or "again.")

Hess v. Indiana "remains perhaps the most important modern affirmation of the famous 'clear and present danger test,'" said Patrick Baude, the Ralph F. Fuchs Professor of Law and Public Service at the Indiana University School of Law-Bloomington and the counsel of record in the U.S. Supreme Court trial.

The "clear and present danger" doctrine arose during the period after World War I when many Americans were punished for making statements opposing the war effort or the draft. In one of the most famous of these cases, Schenck v. United States (1919), the U.S. Supreme Court upheld the conviction of an individual who had mailed leaflets to young men of draft age critical of the war effort and the draft law. Even though the leaflet was not accused of causing any instances of draft resistance, Justice Oliver Wendell Holmes, writing for the court, asked whether "the words create a clear and present danger that they will bring about substantive evils Congress has a right to prevent."

Holmes also famously declared that "the most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic."

Though the First Amendment claimants in cases such as Schenck or Debs v. United States (1919) often lost in the Supreme Court, they initiated a debate that eventually led to greater protection of free-speech rights. In Debs v. United States (1919), for example, socialist Eugene Debs was sentenced to 10 years in prison for declaring that "you need to know that you are fit for something better than slavery and cannon fodder," a reference to the military draft. Compared to today's speeches made against the war in Iraq, Debs' remarks may seem relatively mild. The Supreme Court, though, using the "clear and present danger" test, upheld the conviction and the sentence.

In Brandenburg v. Ohio (1969), the Supreme Court reversed the conviction of a Ku Klux Klan leader who gave a speech that included racist statements and warned of a possible march on Congress. The case gave rise to the Brandenburg or "incitement" test to determine whether First Amendment protection should extend to subversive speech that falls short of inciting unlawful behavior. Four years later, the Supreme Court would apply that analysis to Hess.

"There was no evidence in the record to support a finding that there was the threat of imminent lawless action by those to whom Hess' statement was directed, nor was there any proof of his intent to incite such behavior," said Professor Emeritus of Law Tom Schornhorst, who represented Hess in the state courts. "Both are essential elements of a speech crime of this type."

Baude said, "We always knew that we would win, but there was a lot of suspense on exactly what the grounds of our victory would be."

Hess continues to be cited by the courts to protect speech that threatens future lawless action. Friday's panel discussion will focus on the legal significance of the case as well as its historical and political context. "We will be contrasting the atmosphere of dissent in the early 1970s with the rather complacent conditions we see in the early 21st century," Schornhorst said.

To speak to Professors Schornhorst or Baude, contact Ryan Piurek, IU Media Relations, at 812-855-5393 or or Lesa Petersen, IU School of Law-Bloomington, at 812-856-4044 or