Gregory Hess (defendant) was arrested for disorderly conduct during an antiwar demonstration on a university campus. During the demonstration, a group of protesters gathered in the street to block passage of a police car transporting arrested protesters. A group of officers proceeded down the street and the protestors moved to the sidewalks. Hess was arrested after one of the officers allegedly heard him shout an obscenity. Witnesses testified that Hess had shouted “We’ll take the fucking street later,” or “We’ll take the fucking street again.” The witnesses testified that Hess appeared to be making a general exclamation to nobody in particular, even though he was facing the crowd of protestors at the time. The witnesses also testified that Hess’ exclamation was no louder than the shouts of others in the crowd at the time. Hess was convicted of disorderly conduct and appealed his conviction up to the state supreme court. The state supreme court upheld Hess’ conviction on a finding that his exclamation was intended to encourage the crowd to engage in illegal activity and was likely to have that effect. Hess’ appealed to the Supreme Court of the United States.