Justice Holmes's Clear And Present Danger Test example essay topic

Hess vs. Indiana, 414 U.S. 105 In May 1970, Gregory Hess took part in an antiwar demonstration on the campus of Indiana University. As the crowd of protesters grew to encompass 100 to 150 people "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" (Hess vs. Indiana, 414 U.S. 105). After two arrests, remaining protesters moved onto streets and curbs and "did not respond to verbal directions from the sheriff to clear the streets" (Hess vs. Indiana, 414 U.S. 105 (1973) ). While the sheriff and other officers tried to disperse the remaining demonstrators, Mr. Hess, stood on a nearby curb and shouted, "We " ll take the fucking street later" or "We " ll take the fucking street again" (Hess vs. Indiana, 414 U.S. 105). The Sheriff reacted by arresting Mr. Hess and charging him with "disorderly conduct" (Hess vs. Indiana, 414 U.S. 105). According to witnesses at the trial, Hess's words were "no louder than other statements by other demonstrators" and he didn't "appear to be addressing any particular person or group" (Hess vs. Indiana, 414 U.S. 105 (1973) ).

Therefore, the court utilized "Indiana's disorderly conduct statute" and only Hess's words were punished (Hess vs. Indiana, 414 U.S. 105 (1973) ). However, when the case went before the Indiana Supreme Court they found "Hess's statement was intended to incite further lawless action on the part of the crowd in the vicinity of the appellant and was likely to produce such action" (Hess vs. Indiana, 414 U.S. 105). Thus, the State Court ruled Mr. Hess's speech was not protected because it was "producing imminent lawless action" (Brandenburg vs. Ohio, 395 U.S. 444 (1969) and posed a "clear and present danger" (Hess vs. Indiana, 414 U.S. 105). So the question emerged can speech pose a clear and present danger if it is not directed at a specific group of individuals? Mr. Hess believed that it could not and deemed his 1st amendment right to free speech had been violated. Therefore, he took his case before the United States Supreme Court.

The United States Supreme Court disagreed with the Indiana court's findings and in a per curiam opinion found that "there was no evidence" from the witnesses "or rational inference from the import of language, that his words were intended to produce, and likely to produce, imminent disorder" (Hess vs. Indiana, 414 U.S. 105 (1973) ). In other words, the court held that for speech to be considered a clear and present danger it must prove to "incite imminent action" (Hess vs. Indiana, 414 U.S. 105 (1973) ). Therefore, Mr. Hess's speech was protected since it could not be proven that it presented any substantiated threat of action "that might be harmful to the nation" (Pember 53). Justice Rehnquist's and Justice Blackmun's dissent questioned the validity of the witness's statements that testified on behalf of the defendant and found the decision questionable, since the ruling was heavily based on the delivery of Hess's statement from their testimony.

They concurred there was no concrete evidence showing to whom the statement was directed, and because of this uncertainty it was difficult to presume if action was being called upon. Hess vs. Indiana, 414 U.S. 105 (1973) is an important case because it challenged "Justice Holmes's clear and present danger test" which first appeared in his "opinion for the court" in the prior restraint case of Sch neck vs. U.S., 249 U.S. 47 (1919) (Redish 2). This test can also be found in the other prior restraint cases of Abrams vs. U.S., 250 U.S. 616 (1919), Git low vs. New York, 268 U.S. 652 (1925), Whitney vs. California 274 U.S. 357 (1927), Dennis vs. U.S., 341 U.S. 494 (1951), Yates vs. U.S., 354 U.S. 298 (1957) and Brandenburg vs. Ohio 395 U.S. 444 (1969), but all of theses cases left "unresolved questions about the test" (Redish 3). Therefore, Hess's case further questioned "how much protection the first amendment gives to speech which advocates unlawful conduct" (Redish 3)? In addition, it proved that to prosecute on the basis of "clear and present danger"some imminence" must occur from the speech (Redish 3).

Bibliography

Hess vs. Indiana, No. 73-5290". Lexis-Nexis Academic Universe. Online. Internet. 9 May 2002.
Pember, Don R. Mass Media Law. 2001-2002 ed.
New York: McGraw-Hill, 2001-2002.
Redish, Martin. "Advocacy of Unlawful Conduct and the First Amendment: In Defense of Clear and Present Danger". Online. Internet. 10 May 2002.
United States. Supreme Court. Hess vs. Indiana, 414 U.S. 105 (1973).
Online. Internet. web 9 May 2002.