First Amendment State Action Doctrine

The First Amendment protects our free speech rights, amongst others. The First Amendment to the U.S. Constitution reads:

“Congress shall make no law respecting…prohibiting…abridging…” our freedoms of speech, religion, press, assembly, and petition."

This language prohibits Congress and our federal legislature from enacting laws that restrict these freedoms. The U.S. Supreme Court interprets this prohibition on federal government power to extend to state and local government through the incorporation doctrine and the Fourteenth Amendment. The Fourteenth Amendment reads, in relevant part:

“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law.”

Therefore, the Fourteenth Amendment secures these protections at the state level, and the Fifth Amendment secures them at the federal level.

What Is State Action?

Supreme Court precedent has established that the First Amendment's prohibition on government regulation extends to all federal, state, and local government agencies. We often refer to this type of government action as "state action."

Our First Amendment and other constitutional rights are generally protected from state action of any type and at any level that intrudes upon these freedoms. This is known as the state action doctrine.

Does the First Amendment Apply to Private Action?

The First Amendment generally applies to government actions restricting private speech or expression with some exceptions, such as:

• Obscenity

• Inciting speech

• Child sexual abuse materials (child pornography)

State and federal entities can also control their own speech, known as government speech.

The First Amendment generally does not constrain the actions of private parties.

However, the Supreme Court has carved out some narrow exceptions that apply these First Amendment constraints to certain private actors and actions.

When Can a Private Entity Be Considered a State Actor?

The Court has determined that in certain limited circumstances, a private actor may be deemed a state actor and thus be subject to the constraints of the First Amendment. They include when:

• A private entity carries out an exclusive and traditional public function

• The state requires a private entity to take a certain action

• The private actor and the state act jointly

• The state establishes a private entity to carry out state objectives

The public function test is satisfied in very limited circumstances. As the Court noted in Flagg Bros., Inc. v. Brooks, although the government may carry out several functions, there aren’t many that are “exclusively reserved to the State.”

In Marsh v. Alabama, the Court addressed whether a corporation that owned a town could be considered a state actor. The company-owned town was just like any American town. It had a post office, public roadways, businesses, and utilities. The company held all the power of a municipality and fully performed all public functions for the town.

Ultimately, the Court determined the corporation was a state actor and couldn’t restrict the First Amendment freedoms of its residents. As a result, the town couldn’t sanction a resident for distributing religious literature. Regardless of the company’s private property interests, the Court preserved the public’s interest in maintaining free and open communication channels.

However, Marsh's company town differs from a private entity that merely opens itself to public use. Such an act is typically inadequate for considering the entity a state actor bound by First Amendment restrictions.

In Hudgens v. NLRB, for example, the Court addressed whether a privately-owned shopping center could expel picketers from its grounds for trespass. The Court held the picketers had no right to enter the center’s premises for the purpose of advertising their protest. Their First Amendment rights to free expression were irrelevant here.

Does a Private Entity That Operates Public Access Channels Qualify as a State Actor?

In Manhattan Community Access Corp. v. Halleck, New York City selected a private nonprofit entity to run public access channels. The Supreme Court addressed whether MNN, the private entity, was a state actor. The Court analyzed whether running public access channels was an exclusive and traditional function of the state. In a narrow majority, the Court determined it wasn’t.

Justice Brett Kavanaugh penned the majority opinion, joined by Chief Justice Roberts and Justices Thomas, Alito, and Gorsuch. The Supreme Court determined that since both private and public entities have historically operated public access channels, this activity does not constitute a traditional and exclusive public function.

Although MNN provided a forum for speech, it was distinct from a private entity operating a public forum such as a park. The Court explained, “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.”

Indeed, private property owners often provide a platform speech. This can take the form of a restaurant providing a community bulletin board, for example, or a comedy club holding an open mic event. These are not state actors subject to First Amendment limitations.

Conversely, when a private party operates a company town or conducts elections, it fulfills the narrow definition of performing an exclusive and traditional state function. In these instances, the private entity is deemed a state actor and is thus subject to the First Amendment.

However, four dissenting justices found the nonprofit was acting as an agent of the city when it ran the public access channels. The dissent, written by Justice Sonia Sotomayor, concluded that MNN should, therefore, be considered a state actor for First Amendment purposes.

Close-Nexus Test

However, a private actor with a “sufficiently close relationship” to the state may be considered a state actor subject to the First Amendment. As the Court held in Jackson v. Metro Edison Co., this relationship may exist if a private entity “is subject to extensive state regulation.”

This alone, however, doesn’t satisfy the state action requirement. Rather, the test is whether there’s:

• A sufficiently strong nexus

• Between the government and the challenged action of the regulated private actor

• To regard the challenged action as an action by the state

The Court further explained in Edmonson v. Leesville Concrete Co. that “governmental authority may dominate an activity to such an extent that its participants must be deemed to act with the authority of the government.”

The Court applied this close-nexus test in Brentwood Acad. v. Tennessee Secondary School Athletic Ass’n (TSSAA). The TSSAA was a private athletic association that regulated high school sports in Tennessee. Representatives from public and private schools across the state comprised the organization. An overwhelming majority of its members were public schools.

The Court determined that the association was a state actor subject to First Amendment limitations regarding its regulatory activity. It reached this conclusion because of “the pervasive entwinement of state school officials in the structure of the association.”

Private Broadcasters as State Actors

In Columbia Broadcasting System v. Democratic National Committee, the Court tackled the often-challenging issue of whether a private broadcasting company should be considered a state actor subject to First Amendment constraints.

Columbia’s radio station had a government-issued license to use the public airwaves and broadcast to the public. It also had a policy prohibiting its radio station from selling airtime to those who sought to express their positions on controversial matters. As a result, it refused to sell airtime to a group wishing to express its views against the Vietnam War. Not surprisingly, this raised First Amendment concerns.

The Court tried to address whether the station was a state actor with respect to the policy. However, the Justices couldn’t agree about whether Columbia’s enforcement of this policy constituted state action.

Chief Justice Warren Burger, along with Justices Rehnquist and Stewart, thought not. They explained that the government didn’t share in the station’s profits or partner with the station regarding the policy. In addition, Congress has explicitly clarified that broadcasters need to retain a degree of journalistic license.

This would be threatened if this policy transformed Columbia into a state actor and subjected it to First Amendment limitations. Likewise, this would mean virtually all decisions of licensed broadcasters would be subjected to the same.   

Justices Marshall, Douglas, and Brennan, however, would have found that Columbia’s station was a state actor. This was due to its use of public airwaves, a public resource, and the extent to which the state regulates broadcasters.

Ultimately, the court's opinion concluded that the First Amendment didn’t compel “a private right of access to the broadcast media” even if Columbia was considered a state actor.

State action is subject to First Amendment constraints. By definition and judicial interpretation, it includes all government action and excludes the actions of private parties. However, an evolving body of caselaw extends these constraints to certain actions of private parties. These precedents provide us with invaluable insight into functions typically reserved for the government.