Invoking 42 U.S.C. § 1983 to protect free speech rights, this Note proposes a new cause of action: the hostile speech environment claim. This claim is necessary to combat the continuing infringement of hate speakers’ First Amendment rights by public colleges and universities. After Part I reviews relevant case law to prove that hate speech is afforded First Amendment protection, Part II examines how and why public colleges and universities persist in regulating constitutionally protected hate speech. Part III explains and justifies the proposed hostile speech environment cause of action. Refuting the argument that hostile work environment law can support an analogous “hostile academic environment” claim against campus hate speakers, this Note draws the opposite inference: more protection of hate speech is needed if public universities are to abide by the First Amendment. Thus, this Note borrows from Title VII employment discrimination law to sketch the hostile speech environment claim. It consists of three elements: (1) severe or pervasive hostility (2) by the government (3) towards protected speech. Two strands of First Amendment law provide the claim’s constitutional foundation: the freedom of thought that inheres in the freedom of speech and the captive audience doctrine. Notably, nothing in its analytical mechanics restricts this new cause of action to higher education, which may lead some to argue that it opens the possibility for waves of First Amendment litigation against government speech and policy. Any such fear is illusory, however. The cause of action’s “severe or pervasive hostility” prong and the practical realities of other contexts—such as secondary education and the government workplace—make it unlikely that hostile speech environment claims could apply to other arenas.
Note
Closing the Accountability Gap for Indian Tribes
The recognition of the right of Indian tribes to self-determination in federal and international law generates strong protections for tribal autonomy, allowing tribes to exercise extensive governmental powers. But federal and international law also combine to create an accountability gap for tribal human rights violations—that is, a space in which victims lack access to a remedy and tribes are able to act with impunity. Just as U.S. states and municipalities can use their governmental powers to both protect and violate human rights, so too can tribes. But when a tribe fails to provide a remedy for its violation, a victim may be unable to access a remedy under federal law due to federal deference to tribal sovereignty. A victim has no recourse directly against the tribe under international law, and tribal self-determination limits the ability of a victim to bring a complaint against the U.S under international law.
This Note proposes filling the accountability gap by recognizing that the right of Indian tribes to self-determination under international law contains a duty to respect, protect, and fulfill human rights. Rather than looking to the United States to provide recourse, which would infringe on tribal self-determination, this proposal recognizes that when a tribe violates a human right, the tribe is breaching international law and owes the victim a remedy. This Note argues that recognition of such a duty would benefit tribes by legitimizing tribal self-determination and governance and closes by discussing how the duty would be implemented in practice.
Forum Domination: Religious Speech In Extremely Limited Public Fora
In the United States there are a large number of religious communities that do not have the resources to obtain a meeting place of their own. Frequently, these groups meet in public schools, taking advantage of liberal rental policies that provide inexpensive space to community groups. Not surprisingly, this kind religious use of public space has generated much First Amendment litigation.
It is now settled law under the Public Forum Doctrine that such religious groups must have access to public facilities on an equal footing with non-religious groups. Nonetheless, the Supreme Court has expressed concern that First Amendment problems could arise if a religious group dominated the available rental space in such a forum.
Although the forum domination problem is one that the Supreme Court has discussed in several opinions, it has never faced the question directly. In spite of the Court’s speculation on the matter, and although the specter of forum domination is often raised, cases of courts actually finding forum domination have been quite rare. More recently, however, the Second Circuit has shown a willingness to find domination in a wider range of scenarios. This note will argue that the Second Circuit has taken an overly broad view of forum domination that does not comport with the Supreme Court’s cases. Properly understood, forum domination occurs only when one group uses a forum’s resources to the exclusion of others who actually seek access to them.
Although forum domination is a problem of narrower scope than the Second Circuit has held, it still is a genuine problem. Forum domination may result in impermissible government aid to, or endorsement of, religion. This note will argue, however, that the most plausible reading of the Supreme Court’s cases is that the forum domination problem presents a limit, not on private speech, but on the government’s administration of public fora. This note will also evaluate several of the policy options available to local governments to avoid the forum domination problem.
Finally, this note will conclude that although courts have discussed the forum domination problem primarily in the context of the use of a forum by religious speakers, it may arise regardless of the religiosity of a forum’s participants. Consequently, enacting policies to ensure the equitable treatment of all speakers is critical in any forum with limited space.