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Articles 1 - 30 of 47
Full-Text Articles in Law
Judges As Superheroes: The Danger Of Confusing Constitutional Decisions With Cosmic Battles, H. Jefferson Powell
Judges As Superheroes: The Danger Of Confusing Constitutional Decisions With Cosmic Battles, H. Jefferson Powell
South Carolina Law Review
No abstract provided.
Blackness As Fighting Words, Etienne C. Toussaint
Blackness As Fighting Words, Etienne C. Toussaint
Faculty Publications
The resurgence of worldwide protests by activists of the Movement for Black Lives (BLM) has ushered a global reckoning with the meaning of this generation’s rallying cry – “Black Lives Matter.” As citizens emblazon their streets with this expression in massive artistic murals, the Trump administration has responded with the militarized policing of non-violent public demonstrations, revealing not merely a disregard for public safety, but far worse, a concerted dismantling of protestors’ First Amendment rights. Nevertheless, BLM protests have persisted. Accordingly, this Essay considers the implications of this generation’s acclamation of Black humanity amidst the social tensions exposed during the …
Immoral Trademarks After Brunetti, Ned Snow
Immoral Trademarks After Brunetti, Ned Snow
Faculty Publications
For more than a century, marks that were vulgar, profane, and obscene could not receive trademark protection. In 2019, however, the Supreme Court in Iancu v. Brunetti invalidated the statutory provision that had prevented such marks from receiving protection—the bars to “immoral” and “scandalous” marks. Those bars violated the First Amendment because they enabled the government to judge whether ideas in marks were inappropriate. Similarly, two years prior to Brunetti, the Court in Matal v. Tam struck down a bar to marks that could “disparage” others. The Court reasoned that to disparage is to offend, and the ability to offend …
When Legislatures Become The Ally Of Academic Freedom: The First State Intellectual Diversity Statute And Its Effect On Academic Freedom, Patrick M. Garry
When Legislatures Become The Ally Of Academic Freedom: The First State Intellectual Diversity Statute And Its Effect On Academic Freedom, Patrick M. Garry
South Carolina Law Review
No abstract provided.
A First Amendment Deference Approach For Reforming Anti-Bullying Laws, Emily Suski
A First Amendment Deference Approach For Reforming Anti-Bullying Laws, Emily Suski
Faculty Publications
This Article examines the anti-bullying laws and their response to the problem of bullying in light of both the nature of the problem itself, the interventions the laws call for, and the laws’ First Amendment implications. Bullying has many varied, negative consequences, some tragic, and is widespread. Yet, the anti-bullying laws disproportionately focus schools’ responses to bullying on school exclusion, meaning suspending, expelling or otherwise excluding students who bully from school. This is so even though social science literature has found school exclusion ineffective and sometimes counterproductive as a method for addressing bullying. What is more, because much of bullying …
Content-Based Copyright Denial, Ned Snow
Content-Based Copyright Denial, Ned Snow
Faculty Publications
No principle of First Amendment law is more firmly established than the principle that government may not restrict speech based on its content. It would seem to follow, then, that Congress may not withhold copyright protection for disfavored categories of content, such as violent video games or pornography. This Article argues otherwise. This Article is the first to recognize a distinction in the scope of coverage between the First Amendment and the Copyright Clause. It claims that speech protection from government censorship does not imply speech protection from private copying. Crucially, I argue that this distinction in the scope of …
Casey And The First Amendment: Revisiting An Old Case To Resolve A New Compelled Speech Controversy, Scott W. Gaylord
Casey And The First Amendment: Revisiting An Old Case To Resolve A New Compelled Speech Controversy, Scott W. Gaylord
South Carolina Law Review
No abstract provided.
Dystopian Constitutionalism, Thomas P. Crocker
Dystopian Constitutionalism, Thomas P. Crocker
Faculty Publications
This article describes and defends the distinctive role and rich tradition of using contrastive dystopian states in constitutional theory and practice. As constitutional tradition going back to the founding, U.S. constitutional analysis was replete with arguments about what practices would lead to an undesirable state of tyranny. In more recent constitutional history, the use of contrasting examples of the “police state,” totalitarianism, or Orwellian references have been prevalent in Supreme Court opinions across doctrinal domains, most recently making a prominent appearance at oral argument in the Fourth Amendment case, United States v. Jones. In contrast to more comprehensive constitutional theories, …
Beyond The Schoolhouse Gates: The Unprecedented Expansion Of School Surveillance Authority Under Cyberbulling Laws, Emily Suski
Beyond The Schoolhouse Gates: The Unprecedented Expansion Of School Surveillance Authority Under Cyberbulling Laws, Emily Suski
Faculty Publications
For several years, states have grappled with the problem of cyberbullying and its sometimes devastating effects. Because cyberbullying often occurs between students, most states have understandably looked to schools to help address the problem. To that end, schools in forty-six states have the authority to intervene when students engage in cyberbullying. This solution seems all to the good unless a close examination of the cyberbullying laws and their implications is made. This Article explores some of the problematic implications of the cyberbullying laws. More specifically, it focuses on how the cyberbullying laws allow schools unprecedented surveillance authority over students. This …
Toward A Better Understanding Of Ripeness And Free Speech Claims, Wm. Grayson Lambert
Toward A Better Understanding Of Ripeness And Free Speech Claims, Wm. Grayson Lambert
South Carolina Law Review
No abstract provided.
Student Cyber-Speech After Kowlaski V. Berkeley County Schools, Margaret A. Hazel
Student Cyber-Speech After Kowlaski V. Berkeley County Schools, Margaret A. Hazel
South Carolina Law Review
No abstract provided.
Judges Playing Jury: Constitutional Conflicts In Deciding Fair Use On Summary Judgment, Ned Snow
Judges Playing Jury: Constitutional Conflicts In Deciding Fair Use On Summary Judgment, Ned Snow
Faculty Publications
Issues of fair use in copyright cases are usually decided at summary judgment. But it was not always so. For well over a century, juries routinely decided these issues. The law recognized that fair use issues were highly subjective and thereby inherently factual — unfit for summary disposition by a judge. Today, however, all this has been forgotten. Judges are characterizing factual issues as purely legal so that fair use may be decided at summary judgment. Even while judges acknowledge that reasonable minds may disagree on these issues, they characterize the issues as legal, preventing them from ever reaching a …
The First Amendment Degraded: Milkovich V. Lorain And A Continuing Sense Of Loss On Its 20th Birthday, Richard H. Weisberg
The First Amendment Degraded: Milkovich V. Lorain And A Continuing Sense Of Loss On Its 20th Birthday, Richard H. Weisberg
South Carolina Law Review
No abstract provided.
Proving Fair Use: Burden Of Proof As Burden Of Speech, Ned Snow
Proving Fair Use: Burden Of Proof As Burden Of Speech, Ned Snow
Faculty Publications
Courts have created a burden of proof in copyright that chills protected speech. The doctrine of fair use purports to ensure that copyright law does not trample rights of speakers whose expression employs copyrighted material. Yet those speakers face a burden of proof that weighs heavily in the fair use analysis, where factual inquiries are often subjective and speculative. Failure to satisfy the burden means severe penalties, which prospect quickly chills the free exercise of speech that constitutes a fair use. The fair-use burden of proof is repugnant to the fair use purpose. Today, copyright holders are exploiting the burden …
Shining A Light On Democracy's Dark Lagoon, Helen Louise Norton
Shining A Light On Democracy's Dark Lagoon, Helen Louise Norton
South Carolina Law Review
No abstract provided.
Snyder V. Phelps, Sarah E. Merkle
A Survey Of The Fourth Circuit's Developing Government-Speech Jurisprudence, M. Todd Carroll, Kevin A. Hall
A Survey Of The Fourth Circuit's Developing Government-Speech Jurisprudence, M. Todd Carroll, Kevin A. Hall
South Carolina Law Review
No abstract provided.
Justice Kennedy's Gendered World, David S. Cohen
Justice Kennedy's Gendered World, David S. Cohen
South Carolina Law Review
No abstract provided.
Taking Stock Of The First Amendment's Application To Securities Regulation, Antony Page
Taking Stock Of The First Amendment's Application To Securities Regulation, Antony Page
South Carolina Law Review
No abstract provided.
Disclosure Is Speech: Imposing Meaningful First Amendment Constraints On Sec Regulatory Authority, Lloyd L. Drury Iii
Disclosure Is Speech: Imposing Meaningful First Amendment Constraints On Sec Regulatory Authority, Lloyd L. Drury Iii
South Carolina Law Review
No abstract provided.
Speaking Legally And Freely: Lawyers, Web Sites, And The First Amendment, James B. Lake
Speaking Legally And Freely: Lawyers, Web Sites, And The First Amendment, James B. Lake
South Carolina Law Review
No abstract provided.
It's Not The Thought That Counts: A Political Economy Of Obscenity, Karen M. Markin
It's Not The Thought That Counts: A Political Economy Of Obscenity, Karen M. Markin
South Carolina Law Review
No abstract provided.
Displacing Dissent: The Role Of Place In First Amendment Jurisprudence, Thomas P. Crocker
Displacing Dissent: The Role Of Place In First Amendment Jurisprudence, Thomas P. Crocker
Faculty Publications
From the perspective of free speech theory, both of the central First Amendment values - human autonomy and deliberative democracy - require robust protection for the places and spaces in which speech and public discourse occur. This Article argues that current Supreme Court doctrine does not effectively protect speech from content neutral regulation of place. The problem is that remaining neutral is consistent with policies that would dislocate the very place for the "marketplace of ideas." Moreover, free speech theory focused on autonomy and deliberative democracy has not adequately addressed the role that place plays in furthering these values. Speech …
Coercing Adults: The Fourth Circuit And The Acceptability Of Religious Expression In Government Settings, Elizabeth B. Halligan
Coercing Adults: The Fourth Circuit And The Acceptability Of Religious Expression In Government Settings, Elizabeth B. Halligan
South Carolina Law Review
No abstract provided.
Historicizing Judicial Scrutiny, G. Edward White
Historicizing Judicial Scrutiny, G. Edward White
South Carolina Law Review
No abstract provided.
Role Of Judges In Secret Judgments, Abner J. Mikva
Role Of Judges In Secret Judgments, Abner J. Mikva
South Carolina Law Review
No abstract provided.
Public-Figure Defamation Actions In South Carolina - Courts Stay Mindful Of The Defendant's State Of Mind, Eric G. Zaiser
Public-Figure Defamation Actions In South Carolina - Courts Stay Mindful Of The Defendant's State Of Mind, Eric G. Zaiser
South Carolina Law Review
No abstract provided.
Tattoos And The First Amendment - Art Should Be Protected As Art: The South Carolina Supreme Court Upholds The State's Ban On Tattooing, Bebby G. Frederick
Tattoos And The First Amendment - Art Should Be Protected As Art: The South Carolina Supreme Court Upholds The State's Ban On Tattooing, Bebby G. Frederick
South Carolina Law Review
No abstract provided.
God Bless The Kickoff: School Prayer In South Carolina In The Wake Of Santa Fe V. Doe, Richele Keel Taylor
God Bless The Kickoff: School Prayer In South Carolina In The Wake Of Santa Fe V. Doe, Richele Keel Taylor
South Carolina Law Review
No abstract provided.
In Defense Of Jeffrey Wigand: A First Amendment Challenge To The Enforcement Of Employee Confidentiality Agreements Against Whistleblower, Brian Stryker Weinstein
In Defense Of Jeffrey Wigand: A First Amendment Challenge To The Enforcement Of Employee Confidentiality Agreements Against Whistleblower, Brian Stryker Weinstein
South Carolina Law Review
No abstract provided.