“WE’LL TAKE THE F***ING STREET LATER.”

The quotation from above is found in the case of Hess v. State, 297 N.E.2d 413 (Ind. 1973) and again in Hess v. Indiana, 414 U.S. 105 (1973). There is no more interesting First Amendment defense to a criminal prosecution from the days of war protests on college campuses.

Curiously, the Hess case seems relevant (to the CLB) in the current issue of whether Donald J. Trump should be prosecuted for inciting to riot on January 6, 2021.

The date was May 13, 1970, just nine days after the infamous Kent State massacre. The place was a public street on the Indiana University campus in Bloomington. The event was a student protest blocking the public street. Monroe County Sheriff Thrasher, Bloomington Police, and campus cops intervened to disperse the protestors, make a few arrests, and open the street to traffic.

As Sheriff Thrasher seemed to be succeeding in the street clearing a student named Gregory Hess addressed the restive crowd by yelling “We’ll take the f***ing street later.” He was charged with disorderly conduct. He was convicted in the Bloomington City court and on trial de novo in the Monroe Superior Court. A slightly divided SCOTSI affirmed. Then the Supreme Court of the United States reversed.

Gregory Hess was prosecuted for no action other than speech. The law allowed such prosecution in four situations: obscenity; fighting words; public nuisance; and incitement of lawless action. The prosecution theory seems to have been limited to the theory of incitement of lawless action, the “taking” of a public street.

The SCOTUS reversed by way of a Per Curiam majority opinion to which there were three dissents from the conservative minority, which today is a conservative (or reactionary) majority. One key circumstance (of stipulated fact) to the majority opinion was the word “later” as used by Mr. Hess. “Later” was taken to refer to “an indefinite future time.” To qualify as a crime, such incitement had to pose a “clear and present danger” of violent conduct. The indefiniteness of when “later” is exonerated Gregory Hess.

Now what about Donald J. Trump (then still President) when he summoned his mob of supporters, worked them into a frenzy, and dispatched them from White House grounds to the Capitol Building to “fight like hell.”

In contrast to the Hess case, Donald J. Trump’s incitement led to actual violent conduct which commenced as soon as his mob reached the Capitol Building. It is the position of the CLB that Donald J. Trump created a “clear and present danger” of violent conduct. For that he should be prosecuted by the Justice Department.

Your blogger recalls the re-broadcast of Trump’s January 6th speech to his assembled mob. As he dispatched the mob to the Capitol Building he promised that he would be joining the mob. That promise was not kept. Your blogger saw that circumstance as evidence of hypocrisy. The lovely and sincere Cassidy Hutchinson gave testimony exonerating Trump from my accusation of hypocrisy. She testified that Trump attempted to travel with his mob (by motorcade) but was foiled by disobedient Secret Service agents. Trump’s intent to join the insurrection actually adds to his (low) integrity. Donald J. Trump should be prosecuted. He should be sentenced to do hard time, as you or I would be for incitement of a riot resulting in serious injury and death.