If you know that some law restricts only unprotected speech, what can you conclude based on that fact alone?

Question

BlackTom AI · Accepted Answer

When analyzing a law that restricts only unprotected speech, the key point is that unprotected speech is not safeguarded by the First Amendment, so restricting it does not violate the First Amendment on its own.
Option 1: 'The law violates the free speech clause...' This is incorrect because the law targets only unprotected speech, which the First Amendment does not protect, so restricting such speech is constitutionally permissible.
Option 2: 'In order to be constitutional, the law must advance a substantial governmental interest.' While many speech restrictions are subject to scrutiny that requires a government interest, this statement overreaches: the specific condition—restricting only unprotected speech—already places the restriction outside First Amendment protection, making this claim irrelevant to the immediate conclusion about this fact alone.
Option 3: 'The law doesn’t violate the free speech clause of the First Amendment.' This is correct given that the restriction is limited to unprotected speech, which the First Amendment does not protect, so restricting it does not infringe the clause.
Option 4: 'If the law’s constitutionality is challenged in court, the law will need to pass either intermediate or strict scrutiny.' This is incorrect as a blanket rule from the stated fact; since the law targets unprotected speech, it is generally deemed permissible under the First Amendment, rather than requiring heightened scrutiny in this context.

If you know that some law restricts only unprotected speech, what can you conclude based on that fact alone?

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