Bar Exam Practice Questions

Obscenity is not protected under the First Amendment because it fails to meet the standards set by the Supreme Court in cases such as Miller v. California. This landmark case established a three-part test to determine whether material can be considered obscene, which includes whether the average person would find that the work, taken as a whole, appeals to the prurient interest, whether the work depicts or describes sexual conduct in a patently offensive way, and whether the work lacks serious literary, artistic, political, or scientific value.

On the other hand, political speech enjoys robust protection because it is crucial for democracy and the functioning of society. The same is true for symbolic speech, such as flag burning or peaceful protests, which conveys a particular message and is protected as a form of expression. Commercial speech, while subject to some regulation, is protected to a certain degree as well, especially when it pertains to truthful information about lawful products or services. However, this protection has limits and is not as robust as that afforded to political or symbolic speech. Hence, obscenity stands out as the category not protected under the First Amendment.