MBE Rules · Constitutional Law
1A — unprotected speech categories
The rule
Speech outside 1A protection: (1) incitement to imminent lawless action (Brandenburg), (2) true threats, (3) fighting words, (4) obscenity (Miller — prurient + patently offensive + no serious value), (5) child pornography. Government may regulate these without strict scrutiny but cannot discriminate by viewpoint within them (R.A.V.).
In plain English
Certain types of speech, like inciting violence or making true threats, aren't protected by the First Amendment, so the government can regulate them more easily.
Worked example
If someone tells a crowd to attack a building immediately, this incitement to imminent lawless action isn't protected speech, and the government can punish it without needing to meet strict scrutiny.
Memory hook
Unprotected Speech: Incite, Threaten, Fight, Obscene, Child Pics. No 1A shield for these five — but no viewpoint bias allowed.
The trap
Students think: All offensive speech is unprotected. Wrong, because only specific categories like incitement and obscenity are. The actual test is whether speech fits one of the five categories.
How examiners test it
The MBE loves: speech that shocks or offends but doesn't fit a category. Trap: students assume offensiveness equals unprotected. Focus on whether it meets criteria like imminent lawless action or obscenity.
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