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Amdt1.7.2.4 State Action Doctrine and Free Speech

First Amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The First Amendment by its terms applies only to laws enacted by Congress and not to the actions of private persons.1 As such, the First Amendment is subject to a “state action” (or “governmental action” ) limitation similar to that applicable to the Fifth and Fourteenth Amendments.2 The Supreme Court has stated that “a private entity can qualify as a state actor in a few limited circumstances,” such as “[1] when the private entity performs a traditional, exclusive public function; [2] when the government compels the private entity to take a particular action; or [3] when the government acts jointly with the private entity.” 3 In addition, some private entities established by the government to carry out governmental objectives may qualify as state actors for purposes of the First Amendment. For example, in Lebron v. National Railroad Passenger Corp., the Court held that the national passenger train company Amtrak, “though nominally a private corporation,” qualified as “an agency or instrumentality of the United States” for purposes of the First Amendment.4 It did not matter, in the Court’s view, that the federal statute establishing Amtrak expressly stated that Amtrak was not a federal agency because Amtrak was “established and organized under federal law for the very purpose of pursuing federal governmental objectives, under the direction and control of federal governmental appointees.” 5

Starting with the “public function” test, the Court extended the First Amendment to apply to the actions of a private party in Marsh v. Alabama, barring the punishment of a resident of a company-owned town for distributing religious literature.6 While the town was owned by a private corporation, “it ha[d] all the characteristics of any other American town,” including residences, businesses, streets, utilities, public safety officers, and a post office.7 Under these circumstances, the Court held that “the corporation’s property interests” did not “settle the question” 8 : “[w]hether a corporation or a municipality owns or possesses the town[,] the public in either case has an identical interest in the functioning of the community in such manner that the channels of communication remain free.” 9 Consequently, the corporation could not be permitted “to govern a community of citizens” in a way that “restrict[ed] their fundamental liberties.” 10

Since Marsh was issued in 1946, however, it has largely been limited to the facts presented in that case, and applies only if a private entity exercises “powers traditionally exclusively reserved to the State.” 11 The Supreme Court extended the Marsh decision in 1968: in Amalgamated Food Employees Union v. Logan Valley Plaza, the Court held that a private shopping mall could not prevent individuals from peacefully picketing on the premises, noting similarities between “the business block in Marsh and the shopping center” at issue in that case.12 However, the Court subsequently disclaimed Logan Valley in Hudgens v. NLRB, rejecting the idea that “large self-contained shopping center[s]” are “the functional equivalent of a municipality.” 13 Instead, the Court held that in Hudgens, where a shopping center manager had threatened to arrest picketers for trespassing, “the constitutional guarantee of free expression ha[d] no part to play.” 14 As a result, the picketers “did not have a First Amendment right to enter this shopping center for the purpose of advertising their strike.” 15 In another decision in which the Supreme Court held that the First Amendment did not prevent a shopping center from banning the distribution of handbills, the Court distinguished Marsh by noting that “the owner of the company town was performing the full spectrum of municipal powers and stood in the shoes of the State.” 16 By contrast, the disputed shopping center had not assumed “municipal functions or power.” 17 The fact that the shopping center was generally open to the public did not qualify as a “dedication of [the] privately owned and operated shopping center to public use” sufficient “to entitle respondents to exercise therein the asserted First Amendment rights.” 18

More recently, in Manhattan Community Access Corp. v. Halleck, the Supreme Court held that Manhattan Neighborhood Network (MNN), a private, nonprofit corporation designated by New York City to operate public access channels in Manhattan, was not a state actor for purposes of the First Amendment because it did not exercise a “traditional, exclusive public function.” 19 Emphasizing the limited number of functions that met this standard under the Court’s precedents,20 the Court reasoned that operating public access channels “has not traditionally and exclusively been performed by government” because “a variety of private and public actors” had performed the function since the 1970s.21 Moreover, the Court reasoned, “merely hosting speech by others is not a traditional, exclusive public function and does not alone transform private entities into state actors subject to First Amendment constraints.” 22

Apart from the factual circumstances presented by the company town that exercises powers “traditionally” and “exclusively” held by the government,23 the Court has sometimes applied the First Amendment against private parties if they have a “sufficiently close relationship” to the government.24 Such circumstances may exist where a private company “is subject to extensive state regulation” —although government regulation alone is not sufficient to establish the state action requirement.25 Instead, the inquiry in such a case is “whether there is a sufficiently close nexus between the State and the challenged action of the regulated entity so that the action of the latter may be fairly treated as that of the State itself.” 26 Accordingly, for example, in Manhattan Community Access Corp., the Supreme Court also held that the city’s selection of MNN and the state’s extensive regulation of MNN did not in and of themselves create state action.27

The question of when broadcast companies are engaged in governmental action subject to the First Amendment has sometimes been a difficult one. In Columbia Broadcasting System v. Democratic National Committee, the Court considered whether a radio station that had a license from the government to broadcast over airwaves in the public domain needed to comply with the First Amendment when it sold air time to third parties.28 The radio station had a policy of refusing to sell air time to persons seeking to express opinions on controversial issues.29 Three Justices joined a plurality opinion concluding that the radio station was not engaged in governmental action when it enforced this policy.30 They reasoned that the federal government had not partnered with or profited from the broadcaster’s decisions and that Congress had “affirmatively indicated” that broadcasters subject to federal law retained certain journalistic license.31 In the view of those Justices, if the Court were “to read the First Amendment to spell out governmental action in the circumstances presented . . . , few licensee decisions on the content of broadcasts or the processes of editorial evaluation would escape constitutional scrutiny.” 32 In contrast, three other Members of the Court would have held that the radio station was engaged in governmental action because of the degree of governmental regulation of broadcasters’ activities and the station’s use of the airwaves, a public resource.33 And three Justices would not have decided the state action question.34 Nevertheless, these three Justices joined the Court’s opinion concluding that even if the broadcaster was engaged in governmental action, the First Amendment did not require “a private right of access to the broadcast media.” 35

Through interpretation of the Fourteenth Amendment, the prohibition extends to the states as well. See Bill of Rights: The Fourteenth Amendment and Incorporation. Of course, the First Amendment also applies to the non-legislative branches of government—to every “government agency—local, state, or federal.” Herbert v. Lando, 441 U.S. 153, 168 n.16 (1979). back
See, e.g., Amdt1.7.2.4 State Action Doctrine and Free Speech. back
Manhattan Cmty. Access Corp. v. Halleck, No. 17-702, slip op. at 6 (U.S. June 17, 2019) (internal citations omitted) (citing Jackson v. Metro. Edison Co., 419 U.S. 345, 352–54 (1974), Blum v. Yaretsky, 457 U.S. 991, 1004–05 (1982), and Lugar v. Edmondson Oil Co., 457 U.S. 922, 941–42 (1982), respectively). back
513 U.S. 374, 383, 394 (1995); see also Dep’t of Transp. v. Ass’n of Am. R.R., 575 U.S. 43, 55 (2015) (extending the holding of Lebron, such that Amtrak was considered a governmental entity “for purposes of” the Fifth Amendment due process and separation-of-powers claims presented by the case). back
Lebron, 513 U.S. at 391–93, 398. back
Marsh v. Alabama, 326 U.S. 501, 509 (1946). A state statute “ma[de] it a crime to enter or remain on the premises of another after having been warned not to do so” ; the resident had been warned that, pursuant to a company policy, she could not distribute religious literature without a permit, and she subsequently disregarded that warning and refused to leave a sidewalk. Id. at 503–04. Accordingly, although the case involved a criminal prosecution brought by the State of Alabama, liability turned on the town’s ability to prevent residents from distributing literature without a permit. See id. back
Id. at 502–03. back
Id. at 505. back
Id. at 507. See also id. at 508 (noting that residents of company towns, like residents of other towns, “must make decisions which affect the welfare of community and nation,” and that to do this, they must have access to “uncensored” information). back
Id. at 509. back
Jackson v. Metro. Edison Co., 419 U.S. 345, 352 (1974) (emphasis added). Accord Lugar v. Edmonson Oil Co., 457 U.S. 922, 939 (1982); Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 158–59 (1978). back
391 U.S. 308, 317 (1968). In dissent, Justice Hugo Black would have ruled that the picketers could not, “under the guise of exercising First Amendment rights, trespass on . . . private property for the purpose of picketing.” Id. at 329 (Black, J., dissenting). back
Hudgens v. NLRB, 424 U.S. 507, 520 (1976). back
Id. at 521. back
Id. back
Lloyd Corp. v. Tanner, 407 U.S. 551, 569 (1972). back
Id. back
Id. at 569–70. back
Manhattan Cmty. Access Corp. v. Halleck, No. 17-702, slip op. at 2–3, 6 (U.S. June 17, 2019) back
Id. at 6–7 (stating that while “running elections” and “operating a company town” qualify as traditional, exclusive public functions, “running sports associations and leagues, administering insurance payments, operating nursing homes, providing special education, representing indigent criminal defendants, resolving private disputes, and supplying electricity” do not). back
Id. at 7. back
Id. at 10. back
Jackson v. Metro. Edison Co., 419 U.S. 345, 352 (1974). back
See Pub. Utils. Comm’n v. Pollak, 343 U.S. 451, 462 (1952) (holding that such a relationship existed where the private company operated a public utility that represented a “substantial monopoly” under congressional authority and, more importantly, the company operated “under the regulatory supervision” of a governmental agency, and the particular action being challenged involved action by that agency). back
Jackson v. Metro. Edison Co., 419 U.S. 345, 350 (1974); see also Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass’n, 531 U.S. 288, 295 (2001). back
Jackson, 419 U.S. at 351. back
See id. at 11 (reasoning that absent performance of a traditional and exclusive public function, a private entity is not a state actor merely because the government licenses, contracts with, grants a monopoly to, or subsidizes it); id. at 12 (reasoning that state regulations that “restrict MNN’s editorial discretion” and effectively require it to “operate almost like a common carrier” do not make MNN a state actor). The majority also rejected the argument that MNN was simply standing in for New York City in managing government property, reasoning that the record did not show that any government owned, leased, or otherwise had a property interest in the public access channels or the broader cable network in which they operated. Id. at 14–15. back
412 U.S. 94 (1973). back
Id. at 98. back
Id. at 120 (plurality opinion of Burger, C.J., and Stewart and Rehnquist, JJ.). back
Id. at 119–20. back
Id. at 120. back
Id. at 150 (Douglas, J., concurring in the judgment); id. at 172–73 (Brennan and Marshall, JJ., dissenting). back
See id. at 171 (Brennan, J., dissenting) (noting that Justices Byron White, Harry Blackmun, and Lewis Powell would not have reached the state action question). back
Id. at 129 (majority opinion). back