In Hess v. Indiana (1973), the U.S. Supreme Court overturned a disorderly conduct conviction of an anti-war protester, Gregory Hess, who was arrested during a demonstration at Indiana University in 1965. The court ruled that his words did not constitute "fighting words" and therefore were protected by the First Amendment's guarantee of freedom of speech. During the protest, Hess had shouted to fellow demonstrators that they should move their protest off campus to avoid police interference but was misheard by an officer as saying “We’ll take the fucking street later.” He was subsequently charged with advocating illegal activity under state law for inciting violence or riotous behavior. However, upon review, it was determined that his comments were directed towards future action rather than immediate violent action and thus could not be considered as incitement under Brandenburg v Ohio standard which requires intent and likelihood for imminent lawless action.

In the dissenting opinion for Hess v. Indiana, Justice Rehnquist argued that the majority's decision was based on an incorrect interpretation of Gregory Hess' words and actions during a protest. He believed that there was enough evidence to suggest that Hess intended his words as a call to immediate action rather than future conduct, which would make them fall outside First Amendment protection. Furthermore, he disagreed with the majority's assertion that no violence or disorder occurred immediately after Hess' statement; in fact, several protesters did move towards the street where police were stationed following his command. Therefore, according to Justice Rehnquist’s view, it could be inferred from this sequence of events that there existed a clear and present danger of riotous activity incited by Hess’ speech.