This section contains the nature of the case and procedural background.

During a Vietnam war protest, Hess (D) was heard to utter the word 'fuck' in a loud voice. D was arrested for disorderly conduct. D said, 'We'll take the fucking street later,' or thereabouts. All witnesses indicated that D did not appear to be exhorting the crowd present and that his statement did not appear to be directed at any person or group. D was convicted and appealed.

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