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Legal Principle at Issue

Whether a state may punish speech that is not part of “narrowly limited classes of speech” outside First Amendment protection (such as incitement, obscenity, or fighting words), and whether advocacy of illegal action at some indefinite future period qualifies as incitement.

Action

The Supreme Court held that the statement could not be criminalized as disorderly conduct and overruled the Indiana Supreme Court.

Facts/Syllabus

A sheriff and his deputies were dispersing a campus anti-war demonstration that blocked a public street when one of the protestors said, “We’ll take the fucking streets later.” The protestor was convicted for violating Indiana’s disorderly conduct statute. Overruling the Indiana Supreme Court, the Supreme Court held that “the statement could be taken as counsel for present moderation; at worst it amounted nothing more than advocacy of illegal action at some indefinite future time.” The Supreme Court held that the statement did not meet the Brandenburg standard (Brandenburg v. Ohio) for incitement which requires a statement to be directed at and likely to produce imminent lawless action. Nor did it fit the “narrowly limited classes of speech” that states may punish (Gooding v. Wilson), such as obscenity or “fighting words.”

Importance of Case

The Court affirmed that limits on speech must fall within narrow, proscribed classes and found that advocacy for lawless action must be imminent to qualify as incitement.