Individual rights - Regulation of unprotected expression

Learning Outcomes

This article explains regulation of unprotected expression under the First Amendment for MBE purposes, including:

• Identifying the main categories of unprotected and less protected expression tested on the MBE—obscenity, child pornography, incitement, fighting words, and true threats.
• Applying the Miller obscenity test, the Brandenburg incitement test, and the fighting words and true threats doctrines to bar-exam style fact patterns.
• Distinguishing content-based from content-neutral regulations when governments target allegedly unprotected speech, and selecting the correct level of scrutiny for each regulation.
• Spotting vagueness, overbreadth, prior restraint, and viewpoint discrimination problems in statutes aimed at obscenity, incitement, fighting words, or threatening speech.
• Comparing obscenity with other sexual expression such as indecency or mere nudity, and predicting when broad morality-based regulations are unconstitutional.
• Differentiating incitement, fighting words, and true threats from protected but offensive political advocacy, hate speech, or rhetorical hyperbole on exams.
• Evaluating whether a regulation survives strict or intermediate scrutiny once a court determines whether the targeted expression is protected, partially protected, or unprotected.
• Analyzing complex MBE-style questions efficiently by organizing issues around speech category, forum, content-neutrality, and available constitutional defenses.

MBE Syllabus

For the MBE, you are required to understand the constitutional rules governing government regulation of unprotected expression, with a focus on the following syllabus points:

• Categories of expression with no (or reduced) First Amendment protection: obscenity, incitement, fighting words, true threats, and child pornography.
• The Miller test for obscenity, including community standards and the SLAPS/value prong.
• The Brandenburg test for incitement to imminent lawless action.
• The definition and limits of the fighting words doctrine.
• The concept of true threats and how they differ from hyperbole and incitement.
• Content-based versus content-neutral regulations and the applicable levels of scrutiny.
• Time, place, and manner rules for content-neutral regulations.
• Doctrines of vagueness, overbreadth, prior restraint, and viewpoint discrimination as they apply to laws targeting unprotected speech.

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.

1. Which of the following is NOT a category of unprotected expression under the First Amendment?
   1. Obscenity
   2. Incitement to imminent lawless action
   3. Defamation of public officials with actual malice
   4. Fighting words
2. A city ordinance bans all public displays of material containing nudity. Is this ordinance likely constitutional?
   1. Yes, because nudity is not protected speech.
   2. Yes, because the city may regulate public morality.
   3. No, because mere nudity is not legally obscene.
   4. No, because all content-based bans are unconstitutional.
3. 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?
   1. Commercial speech
   2. Fighting words
   3. Obscenity
   4. True threats

Introduction

The First Amendment provides broad protection for expression, but that protection is not absolute. The Supreme Court has recognized a small set of categories of expression that receive no protection (or sharply reduced protection), allowing government to regulate or punish them without satisfying the usual strict scrutiny standard for content-based laws.

On the MBE, you are frequently asked to decide whether a regulation falls within one of these narrow categories or instead reaches protected speech and therefore violates the First Amendment.

Key Term: Unprotected Expression
Expression that the government may regulate or punish because it falls within a category considered outside First Amendment protection, such as obscenity, incitement, fighting words, true threats, or child pornography.

Even when a category is "unprotected," however, the government does not have unlimited power. Regulations still must be carefully drafted, cannot discriminate based on viewpoint, and may not be unconstitutionally vague or overbroad.

Before turning to each category, you should also keep in mind the distinction between content-based and content-neutral regulation.

Key Term: Content-Based Regulation
A law that applies to speech because of the topic discussed or the message expressed. Content-based laws generally trigger strict scrutiny and are usually invalid as to protected speech.

Key Term: Content-Neutral Regulation
A law that regulates the time, place, or manner of speech without regard to its subject matter or viewpoint. Content-neutral laws in a public forum are evaluated under intermediate scrutiny.

Key Term: Time, Place, and Manner Restriction
A content-neutral regulation of when, where, or how speech may occur in a public forum. It must be narrowly tailored to serve a significant governmental interest and leave open ample alternative channels of communication.

Categories of Unprotected Expression

The main categories of unprotected or minimally protected expression you must know for the MBE are:

• Obscenity (and, separately, child pornography)
• Incitement to imminent lawless action
• Fighting words
• True threats

Other areas like defamation and commercial speech are partially protected, and they follow their own specific doctrines. This article focuses on the fully unprotected categories most frequently tested in connection with content-based regulations.

Obscenity

Obscene material is not protected by the First Amendment, so government may ban its sale, distribution, or exhibition. But the Supreme Court has emphasized that not all sexual expression is obscene. Nudity, sexual themes, or offensive sexual content are not enough by themselves.

Key Term: Obscenity
Sexually explicit material that meets all three parts of the Miller test: prurient appeal, patently offensive depiction of sexual conduct, and lack of serious literary, artistic, political, or scientific value.

Key Term: Miller Test
The three-part constitutional test for obscenity announced in Miller v. California. Each prong must be satisfied for material to be obscene and unprotected.

Key Term: SLAPS (Serious Literary, Artistic, Political, or Scientific Value)
The third prong of the Miller test; material is not obscene if it has serious value in any of these domains, as judged by a reasonable person applying a national standard.

The Miller Test

A work is obscene only if all three of the following are true:

1. Prurient appeal (community standard)
   The average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest (that is, a shameful or morbid interest in sex, not a normal healthy interest).

2. Patently offensive depiction (community standard)
   The work depicts or describes, in a patently offensive way, sexual conduct specifically defined as such by the applicable state law (e.g., graphic, hardcore sexual acts, lewd exhibition of genitals).

3. Lack of serious value (national "reasonable person" standard)
   The work, taken as a whole, lacks serious literary, artistic, political, or scientific value. This is an objective test: would a reasonable person, using a national standard, find serious value?

Key exam points:

• All three prongs are required. If any prong fails, the work is not legally obscene and is protected.
• "Community standards" are local for prurient appeal and patent offensiveness, but the SLAPS prong uses a national, reasonable-person standard.
• Only "hard-core" sexual conduct is typically obscene.
  • Mere nudity, non-explicit sexual discussion, or non-graphic depictions of sex are not obscene.
• The state statute must specifically define the sexual conduct it is targeting; vague catch-all terms are unconstitutional.

Key Term: Vagueness
A statute is unconstitutionally vague if people of common intelligence must guess at its meaning. Vague speech regulations violate due process and risk arbitrary enforcement.

Key Term: Overbreadth
A statute is overbroad if it prohibits a substantial amount of protected speech in relation to its legitimate sweep. Overbroad laws violate the First Amendment.

Because of these doctrines, statutes that simply prohibit "sexual materials," "indecent speech," or "lewd conduct" with no further definition are at serious risk of being struck down as vague or overbroad.

Obscenity vs. Other Sexual Expression

On exams, pay close attention to what the law actually bans:

• A complete ban on all nudity (as in the sample question) will almost always be unconstitutional. Nudity alone is not enough to satisfy Miller.
• Laws restricting obscene materials to consenting adults are usually permitted, but statutes burdening non-obscene adult pornography must satisfy higher scrutiny.
• Private possession of obscenity in the home generally cannot be criminalized (Stanley v. Georgia), although production and distribution can be.
• Broadcast indecency (e.g., fleeting expletives on radio/TV) is subject to a different, more deferential standard because of the unique nature of broadcast media; do not call this obscenity unless the Miller test is met.

Child Pornography

Key Term: Child Pornography
Visual depictions of actual minors engaged in sexual conduct. This category is unprotected regardless of whether the material is obscene under Miller.

Child pornography is treated as a separate, categorical exception:

• It may be prohibited even if it does not satisfy the Miller test.
• The government may ban possession, sale, and distribution outright.
• Virtual child pornography (no real children used) is not automatically unprotected, but may be regulated under other doctrines (e.g., obscenity, secondary effects).

Incitement to Imminent Lawless Action

Advocacy of illegal conduct is often protected. Political speech regularly includes strong rhetoric that supports lawbreaking in a general way. Only a narrow band of speech that intentionally and likely produces imminent lawless action is unprotected.

Key Term: Incitement
Advocacy that is intended and likely to produce imminent lawless action, where such action is actually likely to occur soon.

Key Term: 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.

Under Brandenburg v. Ohio, the government must show:

1. Intent
   The speaker specifically intends to cause imminent unlawful conduct (not just advocate a viewpoint or abstract doctrine).

2. Imminence
   The advocated lawless action is expected to occur soon, not at some indefinite time in the future.

3. Likelihood
   The speech is likely to produce the imminent lawless action, given the circumstances (e.g., an angry armed crowd poised to move).

Mere advocacy of law violation, even in vivid or offensive language, is protected if:

• The speech is about future lawbreaking ("Someday we should..."), or
• The crowd is not poised to act, or
• The speaker lacks intent to produce immediate unlawful conduct.

Fighting Words

Fighting words occupy another narrow category of unprotected speech. In practice, modern decisions rarely uphold convictions under fighting words laws because the statutes are often overbroad, vague, or viewpoint discriminatory. Still, the doctrine is tested.

Key Term: Fighting Words
Personally abusive epithets, directed face-to-face at a specific person, that are inherently likely to provoke an immediate violent response and cause a breach of the peace.

To qualify as fighting words, speech must:

• Be directed at a particular person in a face-to-face confrontation,
• Use personally abusive epithets, not just express a viewpoint, and
• Be likely, in context, to provoke the average person to immediate retaliation.

Important exam distinctions:

• General vulgarity ("This law is bull****," or wearing a jacket with offensive words) is usually **protected**.
• "Hate speech" is not a separate unprotected category; hateful statements are punishable only if they fall into another category (e.g., true threats, fighting words).
• Statutes punishing "offensive," "insulting," or "annoying" language are usually struck down as vague or overbroad.

Furthermore, even a valid fighting words law must be content-neutral as between viewpoints. A statute that bans only racial epithets or only insults about certain groups is almost certainly unconstitutional.

Key Term: Viewpoint Discrimination
Government regulation that favors or disfavors particular opinions or positions within a subject area. Viewpoint discrimination is almost always unconstitutional.

True Threats

True threats are not always listed as a separate category in older outlines, but they are a distinct, unprotected type of expression in current law.

Key Term: True Threats
Statements in which the speaker intends to communicate a serious expression of intent to commit unlawful violence to a particular individual or group, placing the target in reasonable fear.

Key features:

• The focus is on the serious expression of intent to do harm, not on whether the speaker actually intends to carry it out.
• The target must reasonably perceive the statement as a threat, not mere political hyperbole or joking.
• True threats can be punished even when there is no imminence of harm and no incitement of third parties.

Examples:

• "If you testify, I will kill you," said to a witness with a gun on the table, is a true threat.
• A political statement like "If they keep passing these laws, someone should hang the legislators" is more likely protected hyperbole unless aimed at a specific individual with sufficient context to be threatening.

Content-Based vs Content-Neutral Regulations in These Areas

Many exam questions mix unprotected categories with the content-based/content-neutral distinction. The typical structure:

• If a law targets speech because of its content (e.g., bans "graphic violence" or "political criticism"), strict scrutiny applies unless the speech is wholly unprotected.
• If the law regulates time, place, or manner without regard to content (e.g., noise limits at night for all speech), intermediate scrutiny applies in a public forum.

Key Term: Public Forum
Government property traditionally open to expressive activity, such as streets, sidewalks, and parks. Content-neutral time, place, and manner rules apply here.

For example:

• A ban on "graphic violence" in highway billboards is content-based and must satisfy strict scrutiny.
• A rule limiting the size or illumination of all electronic billboards, regardless of content, is a content-neutral time, place, and manner regulation.

Prior Restraints, Vagueness, and Overbreadth

Key Term: Prior Restraint
An administrative or judicial order that prohibits speech before it occurs (e.g., licensing schemes, injunctions against publication). Prior restraints are strongly disfavored and presumptively invalid.

Key Term: Overbreadth (Speech)
A statute is overbroad if it prohibits a substantial amount of protected speech along with unprotected speech, in relation to its plainly legitimate sweep.

The doctrines of vagueness and overbreadth are frequently used to invalidate laws that purport to reach fighting words or incitement but in fact reach much more.

• Laws banning "offensive," "annoying," or "immoral" speech are usually vague and overbroad.
• A person can sometimes challenge a statute as overbroad on its face, even if their conduct might be validly punished, because of the chilling effect on others.

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. Because the ordinance bans all displays of nudity, including non-obscene works (e.g., classical art, medical texts), it is substantially 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. Under Brandenburg, the government must show the speaker intended to produce imminent lawless action and that such action was likely and imminent. Here, the statement advocates protest, not lawbreaking, and there is no indication the speaker meant to cause immediate vandalism or that violence was likely to occur right away. Subsequent unlawful acts by some listeners do not retroactively turn protected advocacy into unprotected incitement.

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. A statute punishing "offensive language" is unconstitutionally vague and overbroad; it sweeps in a wide range of protected expression. Only a narrowly drawn law targeting fighting words—personally abusive epithets, directed face-to-face, likely to provoke immediate violence—could be valid. Even then, the law must not discriminate based on viewpoint (e.g., only racist insults). As written, this ordinance is invalid.

Worked Example 1.4

A protester on a public sidewalk outside a courthouse yells, "The judges here are corrupt thieves, and the system should be burned down!" A state statute makes it a crime to use "abusive language tending to cause unrest" near a courthouse. The protester is convicted. Is the conviction constitutional?

Answer:
Probably not. The protester’s speech criticizes government officials and institutions, the core of protected political speech. It is not directed at a specific individual in a way likely to provoke immediate violence, so it is not fighting words. The statute itself is vague ("abusive" and "tending to cause unrest") and overbroad, and it discriminates based on content. The conviction would be reversed.

Worked Example 1.5

At a political rally, a speaker shouts to an angry crowd in front of a tax office, "There are the tyrants! Break in now and burn their files!" The crowd surges toward the building, and some begin throwing rocks. The speaker is prosecuted under a statute prohibiting "advocacy of criminal acts." Is the statute constitutional as applied?

Answer:
Yes, if applied narrowly to incitement. Here, the speaker expressly urges the crowd to commit immediate unlawful acts (breaking and burning) and the crowd begins to act. The speech is intended and likely to produce imminent lawless action, satisfying Brandenburg. Although the statute’s text ("advocacy of criminal acts") is broad, the Court can construe it narrowly to cover only incitement; as so applied, the prosecution is constitutional.

Worked Example 1.6

An angry ex-employee posts online: "One of these days, that plant manager is going to get what’s coming to him. I hope someone teaches him a lesson." The manager receives the post from a co-worker and feels frightened. The state charges the ex-employee with making a true threat. Is the speech a true threat?

Answer:
Probably not. The statements are conditional and vague ("one of these days," "someone teaches him a lesson") and lack a serious expression of the speaker’s intent to commit unlawful violence. They are closer to offensive opinion or hyperbole. Without a specific, serious, and directed expression of intent to harm, the statements are protected and cannot be punished as true threats.

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, disturbing, or critical of public officials.

Revision Tip

Always apply the specific constitutional test for each category:

• Miller (including the SLAPS/value prong) for obscenity and sexual expression.
• Brandenburg for incitement.
• The narrow fighting words definition plus vagueness/overbreadth analysis for face-to-face insults.
• The true threats standard for serious expressions of intent to commit violence.

Key Point Checklist

This article has covered the following key knowledge points:

• Only a few narrow categories—obscenity, incitement, fighting words, true threats, and child pornography—are truly unprotected by the First Amendment.
• Obscenity is defined by the three-part Miller test: prurient appeal, patently offensive depiction of sexual conduct defined by state law, and lack of serious SLAPS value.
• Mere nudity or non-explicit sexual content is not obscene; broad bans on all nudity are overbroad and unconstitutional.
• Child pornography is a separate unprotected category; it may be banned even if not obscene under Miller, including mere possession.
• Incitement requires intent to produce imminent lawless action and a likelihood of such action under the Brandenburg test; advocacy of illegal ideas in the abstract is protected.
• Fighting words are personally abusive epithets directed at a specific person in a face-to-face confrontation, likely to provoke immediate violence. General profanity or "hate speech" alone is protected.
• True threats involve serious expressions of intent to commit unlawful violence and are unprotected; rhetorical hyperbole is not enough.
• Content-based regulations of protected speech ordinarily trigger strict scrutiny; content-neutral time, place, and manner rules in public forums receive intermediate scrutiny.
• Laws regulating unprotected expression must still avoid viewpoint discrimination and must not be vague or overbroad.
• Prior restraints on speech (e.g., injunctions or licensing schemes) are presumptively invalid and subject to very strict review.

Key Terms and Concepts

• Unprotected Expression
• Obscenity
• Miller Test
• SLAPS (Serious Literary, Artistic, Political, or Scientific Value)
• Incitement
• Brandenburg Test
• Fighting Words
• True Threats
• Content-Based Regulation
• Content-Neutral Regulation
• Time, Place, and Manner Restriction
• Public Forum
• Viewpoint Discrimination
• Vagueness
• Overbreadth
• Prior Restraint
• Child Pornography