Learning Outcomes
After reading this article, you will be able to identify categories of unprotected expression, explain the constitutional standards for regulating obscenity, incitement, and fighting words, and apply these rules to MBE-style questions. You will also distinguish unprotected from protected speech and understand the limits of government power to restrict expression under the First Amendment.
MBE Syllabus
For the MBE, you are required to understand the constitutional rules governing government regulation of unprotected expression. This includes knowing which categories of speech are not protected by the First Amendment and the standards for upholding laws restricting such speech. You should be able to:
- Identify and define categories of unprotected expression: obscenity, incitement, and fighting words.
- Apply the constitutional tests for obscenity (Miller test), incitement (Brandenburg test), and fighting words.
- Distinguish between content-based and content-neutral regulations.
- Recognize the limits of government power to punish or restrict unprotected speech.
- Analyze whether a law or prosecution involving expression is likely to be upheld under the First Amendment.
Test Your Knowledge
Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.
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Which of the following is NOT a category of unprotected expression under the First Amendment?
- Obscenity
- Incitement to imminent lawless action
- Defamation of public officials with actual malice
- Fighting words
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A city ordinance bans all public displays of material containing nudity. Is this ordinance likely constitutional?
- Yes, because nudity is not protected speech.
- Yes, because the city may regulate public morality.
- No, because mere nudity is not legally obscene.
- No, because all content-based bans are unconstitutional.
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A state law criminalizes speech that is "likely to provoke a violent response." This law is most likely aimed at which category of unprotected speech?
- Commercial speech
- Fighting words
- Obscenity
- True threats
Introduction
Certain categories of expression are not protected by the First Amendment and may be regulated or punished by the government. These include obscenity, incitement to imminent lawless action, and fighting words. Understanding the boundaries of unprotected expression and the constitutional standards for regulation is essential for MBE success.
Categories of Unprotected Expression
The Supreme Court has held that some types of speech are outside First Amendment protection. The main unprotected categories tested on the MBE are:
- Obscenity
- Incitement to imminent lawless action
- Fighting words
Key Term: Unprotected Expression Categories of speech that the government may regulate or punish because they are not protected by the First Amendment, such as obscenity, incitement, and fighting words.
Obscenity
Obscenity is not protected by the First Amendment. However, not all sexually explicit material is obscene. The Supreme Court uses a specific test to determine whether material is obscene.
Key Term: Obscenity Material that meets the three-part Miller test: appeals to the prurient interest, depicts sexual conduct in a patently offensive way, and lacks serious literary, artistic, political, or scientific value.
The Miller Test
A work is obscene if:
- The average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest;
- The work depicts or describes, in a patently offensive way, sexual conduct specifically defined by state law; and
- The work, taken as a whole, lacks serious literary, artistic, political, or scientific value (the "SLAPS" test), as determined by a reasonable person using a national standard.
Mere nudity or non-explicit sexual content does not satisfy the Miller test. Only "hardcore" sexual conduct can be found obscene.
Incitement to Imminent Lawless Action
Speech that incites others to commit imminent lawless acts is unprotected, but only under a strict standard.
Key Term: Incitement Advocacy intended and likely to produce imminent lawless action, and where such action is actually likely to occur.
The Brandenburg Test
Speech may be punished as incitement only if:
- The speaker intends to produce imminent lawless action; and
- The speech is likely to produce such action.
Mere advocacy of illegal conduct, without intent and likelihood of imminent lawless action, is protected.
Fighting Words
Fighting words are not protected by the First Amendment. These are words that, by their very utterance, are likely to provoke an immediate violent response.
Key Term: Fighting Words Personally abusive epithets directed at a specific person, likely to provoke an immediate breach of the peace.
Laws targeting fighting words must be narrowly drawn and not based on the content or viewpoint of the message. General vulgarity or offensive language is not enough.
True Threats
Although not always tested as a separate category, true threats—statements meant to communicate a serious intent to commit unlawful violence—are also unprotected.
Key Term: True Threats Statements intended to place an individual or group in fear of bodily harm or death.
Worked Example 1.1
A bookstore sells a magazine containing photographs of nude models. The city prosecutes the store under an ordinance banning all public displays of nudity. The store challenges the ordinance on First Amendment grounds. Is the ordinance likely constitutional?
Answer: No. Mere nudity is not legally obscene. The Miller test requires depiction of sexual conduct in a patently offensive way, not just nudity. The ordinance is overbroad and unconstitutional as applied to protected speech.
Worked Example 1.2
A speaker at a rally urges the crowd to "take to the streets and protest the mayor's policies." Some in the crowd later vandalize property. Can the speaker be prosecuted for incitement?
Answer: No. The speaker did not intend to produce imminent lawless action, nor was such action likely to occur immediately. The Brandenburg test is not satisfied.
Worked Example 1.3
During a heated argument, one person shouts a racial slur at another, who then punches the speaker. The city has a law criminalizing "offensive language." Is prosecution under this law constitutional?
Answer: No. Laws punishing offensive language are overbroad. Only fighting words—personally abusive epithets likely to provoke immediate violence—may be punished, and statutes must be narrowly drawn.
Exam Warning
Laws banning "offensive" or "annoying" speech are almost always unconstitutionally vague or overbroad. The government must use precise definitions and cannot ban speech simply because it is unpopular or disturbing.
Revision Tip
Always apply the specific constitutional test for each category: Miller for obscenity, Brandenburg for incitement, and the fighting words doctrine for personally abusive epithets.
Key Point Checklist
This article has covered the following key knowledge points:
- Certain categories of speech—obscenity, incitement, fighting words—are not protected by the First Amendment.
- Obscenity is defined by the three-part Miller test; mere nudity is not enough.
- Incitement requires intent and likelihood of imminent lawless action (Brandenburg test).
- Fighting words are personally abusive epithets likely to provoke immediate violence.
- Laws regulating unprotected expression must be narrowly tailored and not vague or overbroad.
- Content-based bans on protected speech are presumptively invalid.
Key Terms and Concepts
- Unprotected Expression
- Obscenity
- Incitement
- Fighting Words
- True Threats
