state action

Federal Trade Commission v. Phoebe Putney Health System, Inc. (11-1160)

Phoebe Putney Health Systems ("PPHS") leased and operated one of two hospitals in Dougherty County, Georgia. PPHS then leased the other county hospital, Palmyra Medical Center, from the Hospital Corporation of America ("HCA"). In April 2011, the Federal Trade Commission ("FTC") filed a complaint against PPHS, alleging that by leasing Palmyra, PPHS violated the Clayton Act and the FTC Act by acting with anticompetitive effect. PPHS argues that it should be exempt from federal antitrust law under the state action doctrine. The Eleventh Circuit found for PPHS, stating that a private actor falls within the state action doctrine when its anticompetitive activity is foreseeable by the state legislature. The FTC urges a more stringent standard where the anticompetitive effect must be intrinsic to the state’s authorization. How the Supreme Court decides this case will dictate how state legislatures delegate power to local government entities, and whether or not they must formally articulate authorization for such an entity to act with anticompetitive effect.

Questions as Framed for the Court by the Parties

1. Whether the Georgia legislature, by vesting the local government entity with general corporate powers to acquire and lease out hospitals and other property, has “clearly articulated and affirmatively expressed” a “state policy to displace competition” in the market for hospital services.

2. Whether such a state policy, even if clearly articulated, would be sufficient to validate the anticompetitive conduct in this case, given that the local government entity neither actively participated in negotiating the terms of the hospital sale nor has any practical means of overseeing the hospital's operation.

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Issue(s)

Where a state legislature’s authorization leads to anticompetitive actions by a private actor, what standard will be applied to determine whether those actions are exempt from federal antitrust law?

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Lindke v. Freed

Issues

Can a public official’s social media activity constitute state action regardless of whether the official used the account to perform a governmental duty or exercise an authority of their office?

This case asks the Supreme Court to determine when, if ever, a politician may block someone from engaging with their social media posts. In this case, James Freed, a city manager, blocked Kevin Lindke from his personal Facebook page and removed Lindke’s comments criticizing Freed’s response to the COVID-19 pandemic. Lindke contends that, because Freed posted about his official duties on his private page, Freed acted as a state official on it and therefore infringed Lindke’s First Amendment rights by blocking him. Freed disagrees, arguing that because Freed blocked Lindke on his personal account rather than his official account, he was not acting as a state official. The Court’s decision could define the scope of politicians’ responsibilities as the use of personal social media for political activity becomes more popular.

Questions as Framed for the Court by the Parties

Whether a public official’s social media activity can constitute state action only if the official used the account to perform a governmental duty or under the authority of his or her office.

In 2014, James Freed became Port Huron, Michigan’s City Manager. Lindke v. Freed at 1. The city manager of Port Huron is responsible for issuing press releases about the city's policies and seeking input on them from citizens.

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Manhattan Community Access Corp. v. Halleck

Issues

Should private entities operating public access television channels be considered state actors per se for constitutional purposes subject to First Amendment limitations on governmental action, even when the state does not control the private entity’s board or operations?

The Supreme Court will determine whether the Second Circuit erred in creating a per se rule that private operators of public access channels are state actors subject to constitutional liability and holding that this is true even where the state does not control the private operator’s board or operations. Petitioners, Manhattan Community Access Corporation et al., also known as Manhattan Neighborhood Network (“MNN”), argue that the Second Circuit violated Supreme Court precedent by determining the constitutional forum question before the state actor issue. MNN also asserts that the public access channels at issue, properly examined under that precedent, would not warrant constitutional protections. Respondents, DeeDee Halleck and Jesus Papoleto Melendez (“Halleck and Melendez”) counter that New York City made the legislative decision to remove MNN’s editorial discretion, thereby designating the public access channels as a public forum warranting constitutional protection. Halleck and Melendez also contend that administering a public forum constitutes a public function, meaning that constitutional protections apply. From a policy perspective, this case is important because it may have implications for the editorial discretion of other private entities—such as YouTube and Twitter—that host expressive spaces open to the public, including government officials.

Questions as Framed for the Court by the Parties

(1) Whether the U.S. Court of Appeals in the 2nd Circuit erred in rejecting the Supreme Court’s state actor tests and instead creating a per se rule that private operators of public access channels are state actors subject to constitutional liability; and (2) whether the U.S. Court of Appeals for the 2nd Circuit erred in holding—contrary to the U.S. Courts of Appeals for the 6th and District of Columbia Circuits—that private entities operating public access television stations are state actors for constitutional purposes where the state has no control over the private entity’s board or operations.

New York City (“NYC”) awarded Time Warner Entertainment Company, L.P. (“Time Warner”) cable franchises for Manhattan and required Time Warner to provide four public access channels for public use, in accordance with New York State regulations. Halleck v. Manhattan Community Access Corporation at 5.

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Murthy v. Missouri

Issues

Did the U.S. government’s conduct compel social media companies in a manner that caused First Amendment harm to social media users, and should the resulting injunction be modified?

This case asks the Supreme Court to decide whether certain government officials impermissibly used their government speech to coerce social media companies to violate the First Amendment rights of social media users. The Court will analyze (1) whether the respondents have standing; (2) whether the government’s conduct violated the Respondents’ First Amendment rights; and (3) whether the granted injunction was properly written. Murthy argues that (1) the respondents do not have standing because their injuries are not traceable to the government; (2) the government officials used their permissible government speech that did not contain any threats; and (3) the injunction is unnecessarily broad and vague and would harm the government and the public’s access to information. Missouri counters that (1) the Respondents have standing because their injuries are directly traceable to government officials and can be redressed; (2) the government officials’ unrelenting pressure crossed the line into impermissible speech that violated the Respondents’ First Amendment rights; and (3) the injunction is properly tailored to the harms that the Respondents suffered. The outcome of this case will affect the ability of the government to communicate with private entities, First Amendment rights, and social media content moderation policies. 

Questions as Framed for the Court by the Parties

(1) Whether respondents have Article III standing; (2) whether the government’s challenged conduct transformed private social media companies’ content-moderation decisions into state action and violated respondents’ First Amendment rights; and (3) whether the terms and breadth of the preliminary injunction are proper.

Since the 2020 presidential election, some federal officials have communicated with social media platforms about “misinformation” on their websites. Missouri v. Biden, at 2. Officials from government agencies told these platforms to remove content and social media accounts involving topics such as COVID-19, pandemic lockdowns, and Hunter Biden’s laptop.

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North Carolina State Board of Dental Examiners v. Federal Trade Commission

Issues

Whether state-action immunity should be given to a state regulatory board that is dominated by professionals in the regulated market.

The Federal Trade Commission (“FTC”) alleges that the North Carolina Board of Dental Examiners (“Board”) has engaged in unfair methods of competition by trying to exclude non-dentists from the teeth-whitening market. The Supreme Court will now determine two legal issues: (1) whether the Board is a public actor or private actor for purposes of federal antitrust liability; and (2) if the Board is a private actor, whether the Board is subject to active supervision by the state. The Board argues that it is a public actor and thus does not need “active supervision” to be immune from federal antitrust law. The FTC argues that the Board is a private actor and is not subject to active state supervision. The Supreme Court’s resolution of this case will impact both the efficacy of future state regulatory boards and the balance of federalism.

Questions as Framed for the Court by the Parties

Whether, for purposes of the state-action exemption from federal antitrust law, an official state regulatory board created by state law may properly be treated as a “private” actor simply because, pursuant to state law, a majority of the board’s members are also market participants who are elected to their official positions by other market participants.

The North Carolina State Board of Dental Examiners (“Board”), enacted by the Dental Practice Act, N.C. Gen. Stat. § 90–48, is a state agency comprised of six licensed dentists, one licensed dental hygienist, and one consumer member. See N.C. State Bd. of Dental Examiners v.

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Acknowledgments

The authors would like to thank Professor George A. Hay for his insight into this case.

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O’Connor-Ratcliff v. Garnier

Issues

Does a public official’s act of blocking an individual from their personal social media account constitute state action subject to the First Amendment when the official uses the account to discuss job-related matters with the public but not under any official duty?

This case asks the Supreme Court to determine if public officials engaged in state action by blocking individuals from their social media accounts that were established without official governmental authority but were used for job-related communication with the public. Petitioners Michelle O’Connor-Ratcliff and T.J. Zane argue that their social media pages are not public fora, and their act of blocking individuals from their social media accounts is not a state action because they used personal discretion when exercising control over their accounts and did not base their act on state obligation or authority. Respondents Christopher and Kimberly Garnier counter that the petitioners engaged in state action because even if the government did not explicitly authorize such actions, public officials’ actions related to their roles are equivalent to state actions. Given the widespread use of social media among elected officials, the outcome of this case has significant implications for communication between officials and the public on social media platforms. Furthermore, the Supreme Court will strive to establish a workable standard to determine when the public officials’ non-governmental social media activities can constitute state action, resolving conflicts among circuit courts’ differing standards.

Questions as Framed for the Court by the Parties

Whether a public official engages in state action subject to the First Amendment by blocking an individual from the official’s personal social media account, when the official uses the account to feature their job and communicate about job-related matters with the public but does not do so pursuant to any governmental authority or duty.

Michelle O’Connor-Ratcliff and T.J. Zane (“Trustees”) created public Facebook and Twitter accounts during their election campaigns for the Poway Unified School District (“PUSD” or “District”) Board of Trustees (“Board”). Garnier v. O’Connor-Ratcliff at 1163.

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state action requirement

The state action requirement refers to the requirement that in order for a plaintiff to have standing to sue over a law being violated, the plaintiff must demonstrate that the government (local, state, or federal), was responsible for the violation, rather than a private actor. 

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