Fact-checked by Grok 2 weeks ago

State action

The state action doctrine is a cornerstone of United States constitutional law that confines the reach of constitutional constraints—most notably the Due Process and Equal Protection Clauses of the Fourteenth Amendment—to conduct fairly attributable to the federal, state, or local government, or to private parties acting as its instruments, thereby exempting purely private behavior from direct judicial enforcement of constitutional norms.^[1] Originating in the Supreme Court's 1883 decision in the Civil Rights Cases, which invalidated the Civil Rights Act of 1875 by ruling that the Fourteenth Amendment targets state deprivations rather than individual acts of discrimination, the doctrine delineates the boundary between public authority and private autonomy to prevent the Constitution from supplanting common-law remedies or legislative choices in nongovernmental spheres.^[2] Over time, the doctrine has evolved through multifaceted tests to determine when private conduct crosses into state action, including the public function test—where a private entity performs a role traditionally exclusive to the sovereign, as in Marsh v. Alabama (1946), which treated a company town's streets as subject to First Amendment protections—and the entanglement or nexus test, exemplified by Burton v. Wilmington Parking Authority (1961), where a state's lease of public property to a discriminatory restaurant rendered the exclusion state action due to mutual economic benefits.^[1] Conversely, mere regulation, licensing, or funding does not suffice absent compulsion or significant encouragement, as clarified in Moose Lodge No. 107 v. Irvis (1972), rejecting state action in a private club's discriminatory policies despite a liquor license, and Jackson v. Metropolitan Edison Co. (1974), insulating a utility's service termination from due process claims.^[1] Judicial enforcement of private agreements can trigger the doctrine, per Shelley v. Kraemer (1948), which voided court-backed racial covenants as state involvement, while Lugar v. Edmondson Oil Co. (1982) extended it to § 1983 claims by requiring both misuse of state procedures and invocation of state authority by private actors.^[1] The doctrine's application underscores federalism's emphasis on limiting constitutional adjudication to governmental overreach, as seen in expansions for civil rights enforcement—like desegregating public schools in Brown v. Board of Education (1954)—but contractions in areas like private education funding in Rendell-Baker v. Kohn (1982).^[1] Controversies persist over its coherence and scope, with critics arguing it perpetuates evasion of accountability for discriminatory practices intertwined with public resources, as in historical racial exclusion cases, yet defenders highlight its fidelity to the Amendment's textual focus on "state" denial, averting undue federal intrusion into voluntary associations and property rights.^[3]^[4] In practice, it governs claims under 42 U.S.C. § 1983 by necessitating proof of state actor status, ensuring constitutional remedies target official misconduct rather than private disputes resolvable through statutes or contracts.^[5]

Constitutional Foundations

Textual and Original Meaning

The state action requirement derives directly from the text of the Fourteenth Amendment's Section 1, which declares: "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; nor deny to any person within its jurisdiction the equal protection of the laws."^[6] This language repeatedly invokes prohibitions on "State" conduct, limiting its reach to governmental entities rather than private individuals or associations.^[1] The absence of any textual mandate extending these constraints to nongovernmental actors underscores that constitutional protections against abridgment of fundamental rights, due process deprivations, or unequal protection apply only when states act or fail to act in ways attributable to official authority.^[1] At ratification in 1868, the original public meaning of these provisions centered on curbing post-Civil War state abuses, particularly Southern "Black Codes" enacted by state legislatures to restrict freed slaves' rights through discriminatory laws on contracts, property, and mobility.^[7] Congressional debates in the 39th Congress, as recorded in the Congressional Globe, emphasized invalidating state-enforced discrimination, with framers like John Bingham arguing the amendment would empower Congress to enforce equal protection against state denials of citizenship rights, without proposing direct regulation of private conduct.^[8]^[7] For instance, Bingham described the Due Process and Equal Protection Clauses as remedies for states' failures to secure fundamental rights, framing the focus as governmental responsibility rather than horizontal application to citizens' interactions.^[7] This understanding aligned with the broader originalist view of the Constitution as a charter limiting government power while preserving individual liberty in private spheres, a principle rooted in the framers' federalist design where the original Bill of Rights constrained only federal action.^[9] Scholars interpreting the Privileges or Immunities Clause through 1860s public meaning, including dictionary usages and contemporary legal treatises, confirm it targeted state laws or enforcement abridging nationally recognized rights, not nongovernmental discrimination.^[9] The amendment's enforcement clause (Section 5) further reinforces this by granting Congress power to legislate against state violations, implying no inherent federal authority over purely private harms absent state involvement.^[10] Early judicial exposition in the Civil Rights Cases (1883) reflected this contemporaneous gloss, holding that the Fourteenth Amendment "nullifies and makes void all state legislation, and state action of every kind, which impairs the privileges and immunities of citizens of the United States," but does not reach "individual invasion of individual rights" by private parties.^[11] The Court's reasoning drew on the amendment's drafting history and plain text to reject the Civil Rights Act of 1875's attempt to federalize protections against private discrimination in public accommodations, deeming such overreach inconsistent with the requirement for state action.^[11] This interpretation, proximate to ratification, preserved federalism by confining constitutional adjudication to instances of official state conduct, a boundary consistent with the Reconstruction-era aim of dismantling state-sanctioned oppression without upending common-law traditions of private autonomy.^[2]

Purpose in Limiting Federal Judicial Power

The state action doctrine confines the federal judiciary's authority to enforce constitutional protections under the Fourteenth Amendment and incorporated provisions of the Bill of Rights to instances involving governmental conduct, excluding purely private actions. This limitation arises from the amendment's explicit textual focus on state responsibilities, as Section 1 declares that "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; nor deny to any person within its jurisdiction the equal protection of the laws." By requiring demonstrable state involvement, the doctrine prevents federal courts from extending constitutional mandates to regulate individual or nongovernmental behavior, thereby upholding principles of federalism that reserve broad authority to states in managing internal affairs absent federal delegation.^[1] In the Civil Rights Cases (1883), the Supreme Court invalidated portions of the Civil Rights Act of 1875 that targeted private discrimination in public accommodations, reasoning that the Fourteenth Amendment prohibits only "State action of a particular character" and does not authorize federal intervention against "individual invasion of individual rights."^[12]^[13] This decision emphasized that the amendment's framers intended to remedy state-sponsored deprivations, such as those enabling Southern Black Codes post-Civil War, rather than to federalize remedies for all civil wrongs, which would infringe on state sovereignty and expand judicial oversight beyond constitutional bounds.^[1] The ruling thus served to restrain federal judicial power by delineating clear boundaries, ensuring courts do not usurp legislative roles in crafting social policy or policing private spheres. The doctrine's design also fosters judicial restraint by narrowing the threshold for constitutional claims, compelling plaintiffs to prove state attribution—through direct action, compulsion, or entanglement—before federal courts may intervene. This avoids overburdening the judiciary with disputes better addressed through state law or private remedies, preserving an zone of private autonomy where federal constitutional law does not apply.^[14]^[1] As reaffirmed in subsequent jurisprudence, such as Shelley v. Kraemer (1948), where state judicial enforcement of racially restrictive covenants constituted state action, the requirement maintains equilibrium between protecting rights against government abuse and limiting federal overreach into areas of traditional liberty.^[1]

Historical Evolution

Origins in the Fourteenth Amendment

The state action doctrine originates in Section 1 of the Fourteenth Amendment, ratified on July 9, 1868, which declares: "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; nor deny to any person within its jurisdiction the equal protection of the laws." This language explicitly constrains state governments, distinguishing the amendment from the original Bill of Rights, which the Supreme Court had previously ruled in Barron v. Baltimore (1833) applied solely to federal action and not to the states. The amendment's focus on prohibiting state deprivations established the foundational requirement that constitutional protections under its provisions generally demand involvement by state actors, leaving purely private conduct outside federal judicial or congressional reach via these clauses.^[1] The doctrine's roots lie in the post-Civil War context, where Southern states enacted Black Codes to restrict freed slaves' rights, prompting Congress to craft the amendment to override state-level discrimination and enforce federal citizenship protections against governmental infringement.^[15] Congressional debates, documented in the Congressional Globe, reveal that framers like John Bingham and Jacob Howard emphasized targeting state laws and officials that denied equal protection, rather than broadly regulating private discrimination, which was partially addressed by the Thirteenth Amendment's prohibition on involuntary servitude.^[1] This intent preserved federalism by limiting federal intervention to cases of state failure or complicity, avoiding an expansive role in private affairs, as evidenced by the amendment's rejection of broader language that might have encompassed individual actions without state nexus.^[15] Early Supreme Court interpretations reinforced this textual and historical limitation. In United States v. Cruikshank (1876), the Court held that the Fourteenth Amendment "prohibits a State from depriving any person of life, liberty, or property, without due process of law; but... adds nothing to the rights of one citizen as against another," vacating convictions for private conspiracies to deprive citizens of rights, as no state action was involved.^[16] Similarly, the Slaughter-House Cases (1873) upheld a Louisiana state law granting a slaughterhouse monopoly against Fourteenth Amendment challenges by interpreting the privileges or immunities clause narrowly as protecting national citizenship rights from state interference, implicitly affirming that routine state economic regulations did not trigger broader invalidation absent clear constitutional violations.^[17] These decisions crystallized the doctrine's origin as a deliberate boundary on federal power, rooted in the amendment's aim to remedy state-sponsored abuses while respecting the distinction between public authority and private autonomy.^[1]

Civil Rights Cases and Early Limitations

In the Civil Rights Cases, decided on October 16, 1883, the U.S. Supreme Court consolidated five lawsuits involving African Americans denied equal access to public accommodations such as inns, theaters, and railroads, in violation of the Civil Rights Act of 1875.^[18]^[11] The Act had mandated full and equal enjoyment of such facilities without discrimination on account of race or previous condition of servitude.^[11] In an 8-1 decision authored by Justice Joseph P. Bradley, the Court invalidated key provisions of the Act, holding that neither the Thirteenth nor Fourteenth Amendments empowered Congress to regulate private conduct in this manner.^[18]^[11] The majority reasoned that the Thirteenth Amendment abolished slavery and its badges but did not extend to general civil rights violations by individuals, as such "incidents" were limited to compulsory servitude rather than voluntary discrimination in commerce.^[11] Under the Fourteenth Amendment, Section 1 prohibits states from denying equal protection or due process, while Section 5 authorizes Congress to enforce this against state actors only; private invasions of rights, even in quasi-public businesses, fell outside federal remedial power.^[1]^[11] The Court rejected arguments that state licensing or regulation of businesses transformed private discrimination into state action, emphasizing that mere inaction or general regulation did not constitute affirmative state deprivation.^[11] This interpretation entrenched the state action requirement as a strict barrier, limiting constitutional protections to direct governmental involvement and exempting private entities unless they exercised core sovereign functions.^[1] Justice John Marshall Harlan dissented, arguing that the Thirteenth Amendment broadly prohibited racial discrimination as a badge of slavery, and that public accommodations, often chartered by states, involved privileges derived from state authority, making federal intervention appropriate.^[18]^[11] Harlan contended that allowing private discrimination undermined the Amendments' purpose of securing freedmen's equality, predicting it would invite state-sanctioned oppression.^[11] The ruling imposed early doctrinal limitations by narrowing federal oversight during Reconstruction's aftermath, effectively halting congressional efforts to combat private racial discrimination until the mid-20th century.^[1] It shifted reliance to state enforcement, which frequently proved inadequate, enabling widespread private segregation practices under the emerging Jim Crow regime without direct federal constitutional challenge.^[11] This strict delineation preserved individual liberty from federal overreach into private affairs but prioritized textual limits on congressional power over broader egalitarian aims.^[1]

Doctrinal Tests and Frameworks

Public Function Doctrine

The public function doctrine constitutes one prong of the state action analysis under the Fourteenth Amendment, attributing state action to a nominally private entity when it exercises powers or performs functions that have been traditionally the exclusive prerogative of the sovereign.^[1] This test demands more than mere public importance or utility regulation; the function must have been historically sovereign in nature, with few activities qualifying, such as governance of municipalities or core electoral processes.^[1] Courts apply it narrowly to avoid constitutionalizing broad swaths of private conduct, emphasizing that delegation alone does not transform private actors into state agents unless the role mirrors an indispensable governmental monopoly.^[19] The doctrine originated in Marsh v. Alabama, 326 U.S. 501 (1946), where the Supreme Court held that a privately owned company town, functionally indistinguishable from a municipal corporation, performed traditional sovereign functions like providing streets, policing, and public services open to non-residents.^[20] There, Gulf Shipbuilding Corporation's enforcement of a trespass ordinance against a Jehovah's Witness distributing religious literature violated the First Amendment (incorporated via the Fourteenth), as the town's public-access nature equated it to state action.^[21] Similarly, in Terry v. Adams, 345 U.S. 461 (1953), a private Democratic club's whites-only pre-primary elections in a one-party Texas county were deemed state action, as they effectively controlled public election outcomes, usurping the sovereign's exclusive role in democratic governance.^[22] These early applications underscored the doctrine's focus on functional equivalence to government, particularly where private entities supplanted public institutions without alternatives.^[1] Subsequent cases delimited the doctrine's scope, rejecting expansive readings. In Jackson v. Metropolitan Edison Co., 419 U.S. 345 (1974), the Court ruled that a state-regulated electric utility's termination of a customer's service for nonpayment did not constitute state action, notwithstanding its monopoly status and extensive regulation, because electricity provision has never been an exclusive government function—historically supplied by private enterprises.^[23] Likewise, Rendell-Baker v. Kohn, 457 U.S. 830 (1982), held that a private school serving mostly state-referred students performed no traditional sovereign role, despite near-total public funding, as education lacks historical exclusivity to the state.^[1] Flagg Bros., Inc. v. Brooks, 436 U.S. 149 (1978), further confined it by finding no state action in a private sale of repossessed goods under state commercial law, as dispute resolution via self-help predates and coexists with governmental adjudication.^[1] In Edmonson v. Leesville Concrete Co., 500 U.S. 614 (1991), the Court extended state action to a private party's peremptory challenges in civil jury selection, attributing it partly to the public function of empaneling impartial juries—a core judicial power—but grounded more in symbiosis with the state than pure functional exclusivity.^[24] More recently, Manhattan Community Access Corp. v. Halleck, 587 U.S. ___ (2019), reaffirmed the doctrine's restraint, ruling that a nonprofit operator of public-access television channels, designated by local law, did not perform a traditional exclusive public function, as operating media forums has long involved private actors without constitutional compulsion.^[25] This decision rejected arguments for broader application to delegated speech regulation, preserving the distinction between government-created opportunities and inherent sovereign duties.^[26] Overall, the public function doctrine remains a high bar, applied in under a dozen Supreme Court contexts, primarily to avert circumvention of constitutional limits through privatization of quintessentially public roles.^[27]

Entanglement and Compulsion Tests

The entanglement test, also known as the symbiotic relationship or nexus test, determines state action by examining whether a private entity's conduct is so intertwined with state operations that the two cannot be separated, imputing constitutional responsibility to the state for the private violation. Originating in Burton v. Wilmington Parking Authority (1961), the Supreme Court found state action where a publicly funded parking authority leased space to a restaurant that refused service to Black customers, as the state derived revenue from the lessee's profits and the facilities served an integrated public function, creating mutual economic dependence.^[28] This test requires evidence of joint participation or benefits accruing to the state from the private misconduct, beyond mere regulation or licensing.^[1] Subsequent rulings have constrained the test's scope to prevent overbroad findings of state action. In Moose Lodge No. 107 v. Irvis (1972), the Court held that a private club's racial discrimination did not constitute state action despite a state liquor license, as the state lacked financial interdependence or control over membership policies. Similarly, Jackson v. Metropolitan Edison Co. (1974) rejected entanglement for a utility's service termination, emphasizing that extensive state regulation alone does not suffice without a direct link between the regulation and the challenged practice.^[29] The test's application demands case-specific analysis of factors like shared facilities, revenue sharing, and inseparability of operations, but courts rarely invoke it successfully post-Burton due to its demanding threshold.^[30] The compulsion test attributes state action to a private actor when the government affirmatively coerces, commands, or provides such significant encouragement that the private conduct is effectively the state's choice, overriding independent decision-making. This approach ensures that states cannot evade constitutional duties by delegating forbidden actions to nominally private parties under duress. In Adickes v. S.H. Kress & Co. (1968), the Supreme Court recognized potential state action where a private restaurant's "whites only" policy might stem from a tacit agreement with local police to exclude Black patrons, as such compulsion or conspiracy would convert private discrimination into state enforcement. The test applies narrowly to direct state mandates or overwhelming pressure, distinguishing it from mere acquiescence or general encouragement. For example, in Norwood v. Harrison (1973), Mississippi's provision of free textbooks exclusively to private segregated schools violated the Equal Protection Clause, as the state affirmatively compelled and subsidized racially discriminatory education. Conversely, Flagg Bros. v. Brooks (1978) found no compulsion in a private sale of liened goods under state law, absent active state enforcement beyond statutory authorization. Courts assess compulsion through evidence of threats, orders, or incentives that leave the private actor no viable alternative, often requiring proof of causation between state intervention and the constitutional harm.^[14] Both tests overlap with joint action doctrines but focus distinctly on involuntary private alignment with state will, preserving the core principle that constitutional protections bind only governmental power, not autonomous private choices.^[1]

Landmark Supreme Court Cases

Mid-20th Century Expansions

In the mid-20th century, the Supreme Court expanded the state action doctrine to address racial discrimination and free speech restrictions by attributing state involvement to certain private conduct, particularly where private entities performed functions akin to governmental ones or benefited from significant public symbiosis. This shift marked a departure from the stricter limitations established in the Civil Rights Cases of 1883, reflecting heightened judicial scrutiny amid the civil rights movement.^[31] A pivotal expansion occurred in Marsh v. Alabama (1946), where the Court ruled that a privately owned company town could not invoke state trespass laws to prohibit religious literature distribution by a Jehovah's Witness on its sidewalks. The Gulf Shipbuilding Corporation owned Chickasaw, Alabama, a town functionally identical to a municipality with streets, businesses, and public access, yet excluded the distributor under a state statute. The 5-3 decision held that such private property, when devoted to public use and exercising powers typically governmental, was subject to First Amendment protections via the Fourteenth Amendment, as the town's monopoly over essential public services rendered it equivalent to state authority.^[21]^[32] Two years later, Shelley v. Kraemer (1948) extended state action to judicial enforcement of private racially restrictive covenants. In separate suits, white petitioners sought court orders to bar Black buyers from properties encumbered by agreements prohibiting sales to non-whites, covenants upheld as valid private contracts under prior precedent. The unanimous Court, per Chief Justice Vinson, determined that while the covenants themselves were not unconstitutional, state courts' equitable enforcement constituted discriminatory state action violating the Equal Protection Clause, as judicial power derived from the state could not be wielded to deny rights on racial grounds. This ruling invalidated judicial backing for such private restrictions nationwide, though it preserved the covenants' facial validity absent enforcement.^[33]^[34] The doctrine further broadened in Burton v. Wilmington Parking Authority (1961), involving a privately leased restaurant in a state-built parking facility that refused service to a Black customer. The Eagle Coffee Shop, Inc., operated under a lease from the publicly funded Wilmington Parking Authority, which derived tax exemptions and revenue from the arrangement. In a 6-3 decision, Justice Clark found a "symbiotic relationship" between the lessee and lessor, where the state's financial interdependence and public purpose transformed the private discrimination into state action under the Fourteenth Amendment, obligating equal protection compliance. This nexus-based approach highlighted mutual benefits and public involvement as triggers for constitutional scrutiny.^[28]^[35] These cases collectively liberalized state action thresholds during the 1940s and 1950s, enabling constitutional challenges to private racial barriers in housing, public accommodations, and speech forums by imputing governmental character to intertwined private-state dynamics. However, the expansions relied on fact-specific inquiries into functional equivalence or entanglement, setting precedents later critiqued for doctrinal ambiguity in subsequent retrenchments.^[36] In NCAA v. Tarkanian (1988), the Supreme Court held that the National Collegiate Athletic Association (NCAA), a private entity, did not engage in state action when it recommended sanctions against a state university's basketball coach, Jerry Tarkanian, despite the university's compliance, because the NCAA's coercive influence over the state institution did not convert the NCAA into a state actor; rather, any state action would stem from the university's voluntary adoption of the recommendations.^[37] This decision refined the entanglement test by emphasizing that a private organization's leverage over public entities, absent direct state control or pervasive regulation, does not suffice for state action attribution. The Court in Edmonson v. Leesville Concrete Co. (1991) extended state action to private litigants' exercise of peremptory challenges in federal civil trials, ruling that such challenges, wielded under state authority in a state-provided forum for jury selection, implicated the Fourteenth Amendment's Equal Protection Clause when used to exclude jurors based on race.^[38] This marked a refinement in applying the public function doctrine to ostensibly private conduct integral to core governmental processes like adjudication, distinguishing it from prior cases involving less direct state involvement.^[39] Subsequent cases like Brentwood Academy v. Tennessee Secondary School Athletic Assn. (2001) further developed the "close nexus" or entwinement prong, finding state action where a nominally private interscholastic athletic association enforced recruiting rules against a private school, given its composition of public school representatives, funding from public entities, and de facto regulatory role over public education athletics in Tennessee.^[40] The 6-3 decision consolidated factors such as state permeation and mutual reliance, providing a broader framework for identifying state action in hybrid public-private associations compared to stricter separations in earlier rulings.^[41] In Manhattan Community Access Corp. v. Halleck (2019), the Court narrowed the public function exception, holding that a private nonprofit designated by New York City to operate public access cable channels was not a state actor subject to the First Amendment, even though state law mandated channel creation and content neutrality, because operating media forums is not an exclusive or traditional government function akin to elections or policing.^[42] This 5-4 ruling reaffirmed restraint in expanding state action to regulated private operators, critiquing lower courts' overbroad interpretations and aligning with precedents limiting compulsion tests to direct governmental coercion rather than regulatory delegation.^[26]

Modern Applications

Civil Rights and Discrimination

In modern jurisprudence, the state action doctrine restricts constitutional challenges to discrimination under the Equal Protection Clause to instances of governmental conduct, excluding purely private acts by individuals or entities. This limitation stems from the Fourteenth Amendment's explicit targeting of state deprivation of rights, as affirmed in longstanding precedents and applied consistently in contemporary cases. Private discrimination, such as by employers or social clubs, thus falls outside constitutional purview absent evidence of state compulsion, entanglement, or performance of a traditional public function.^[1] Courts have routinely rejected arguments that government funding or regulation transforms private discriminatory practices into state action. For instance, extensive public subsidies to private schools or healthcare providers do not render their employment or admissions decisions attributable to the state if the entity exercises independent judgment. Similarly, government contracts with private firms, even for services like prisons or welfare administration, fail to establish state action for discrimination claims unless the state affirmatively directs or coerces the discriminatory policy. This approach preserves private autonomy while channeling civil rights enforcement through statutes like Title VII of the Civil Rights Act of 1964, which prohibit employment discrimination irrespective of state action.^[1] Rare findings of state action in discrimination contexts typically involve symbiotic relationships or judicial enforcement of private restrictions. However, post-2000 decisions, such as those analyzing nonprofit associations or regulatory bodies, underscore the doctrine's stringency, requiring pervasive entwinement rather than incidental ties. Lower federal courts applying this framework have dismissed Section 1983 claims alleging racial or sex discrimination by private landlords or businesses, citing insufficient state nexus despite local licensing or zoning approvals. Critics from academic circles, often aligned with expansive government intervention views, contend this shields harmful private biases, yet the doctrine aligns with textual limits on federal power, avoiding compelled private conformity to equal protection norms.^[1]^[14]

Free Speech and Private Entities

The First Amendment prohibits government abridgment of speech but imposes no restrictions on private entities, which retain broad authority to moderate, curate, or exclude content on their platforms or property without triggering constitutional scrutiny.^[43]^[44] This principle holds that private actors, including corporations operating digital forums or physical spaces, exercise editorial discretion akin to newspapers, which the Supreme Court has long shielded from compelled speech obligations.^[45] A landmark affirmation came in Manhattan Community Access Corp. v. Halleck (2019), where the Court ruled 5-4 that a private nonprofit designated by New York City to manage public access television channels was not a state actor, even though it operated under a government franchise and received public funding.^[42] Justice Kavanaugh's majority opinion emphasized that the Free Speech Clause targets only governmental restrictions, rejecting arguments that private provision of a speech forum inherently constitutes state action absent traditional public functions or compulsion.^[25] The dissent, led by Justice Sotomayor, contended that deep government entanglement blurred lines, but the ruling narrowed exceptions to rare historical precedents like company towns.^[27] Historical exceptions remain limited and fact-specific. In Marsh v. Alabama (1946), the Court unanimously held that a privately owned company town performing all municipal services—such as policing, utilities, and governance—functioned as a public entity, subjecting it to First and Fourteenth Amendment constraints; thus, a Jehovah's Witness could distribute religious literature on its sidewalks without trespass liability.^[32]^[20] This public function doctrine has proven difficult to extend, as subsequent cases like Lloyd Corp. v. Tanner (1972) denied similar status to private shopping centers lacking comprehensive governmental replacement.^[46] In modern digital contexts, social media platforms exemplify private entities' insulation from First Amendment mandates. Platforms such as Meta and X (formerly Twitter) implement algorithmic curation and user bans as proprietary decisions, not state action, even amid monopoly-like market dominance.^[47] Moody v. NetChoice, LLC (2024) reinforced this by vacating injunctions against Texas and Florida laws limiting content moderation, holding that platforms' selective amplification constitutes protected editorial speech, while state restrictions on it risk First Amendment violations through compelled inclusion.^[48]^[49] However, private moderation can cross into state action if government officials exert coercive pressure, as alleged in Murthy v. Missouri (2024), where plaintiffs claimed Biden administration communications induced platforms to suppress COVID-19 dissent and election-related posts; the Court dismissed for lack of standing but remanded for merits review, signaling that non-coercive persuasion falls short of constitutional harm.^[50]^[51] Physical private spaces follow suit, with federal law prioritizing property rights over speech access unless states opt for broader protections. Pruneyard Shopping Center v. Robins (1980) upheld California's constitutional mandate requiring large private malls to permit petition circulation, but clarified that the U.S. First Amendment imposes no such duty, preserving owners' exclusionary rights absent state actor status.^[52] Empirical patterns show platforms' moderation often aligns with prevailing institutional biases, such as documented preferences for left-leaning viewpoints in content decisions revealed post-2022 ownership changes at X, though these remain private prerogatives unless verifiably compelled by government.^[46] Debates persist over whether pervasive regulation or public utility analogies could evolve the doctrine, but the Court has consistently resisted, prioritizing causal distinctions between voluntary private choices and governmental fiat.^[44]

Criticisms and Debates

Perspectives Favoring Restraint

Advocates for restraint in the state action doctrine argue that constitutional provisions, particularly the Fourteenth Amendment's Due Process and Equal Protection Clauses, textually constrain only governmental entities, not private conduct, thereby preserving a domain of individual autonomy free from federal judicial oversight. This view traces to the Supreme Court's decision in the Civil Rights Cases (1883), where the Court invalidated portions of the Civil Rights Act of 1875 that targeted private discrimination in public accommodations, reasoning that the amendment's prohibitions apply solely to state action and that remedial legislation under Section 5 cannot create substantive rights against nongovernmental parties.^[53] A broader interpretation, they contend, would erode the public-private distinction embedded in the Constitution's structure, effectively converting the Bill of Rights and Reconstruction Amendments into general licenses for judicial regulation of voluntary associations, contracts, and property rights.^[54] Such restraint aligns with originalist interpretations, which emphasize that the Framers and ratifiers understood constitutional limits as checks on sovereign power rather than mandates for egalitarian outcomes in civil society. For instance, at the time of the Fourteenth Amendment's ratification in 1868, "state action" was understood to require direct governmental involvement or compulsion, excluding mere enforcement of common-law rights like contract or exclusion from private premises.^[55] Expanding the doctrine to encompass indirect encouragement—such as through licensing or regulatory frameworks—risks rendering virtually all private activity attributable to the state, as background legal rules inevitably shape behavior. This perspective, advanced by scholars like Michael W. McConnell, warns that diluting the requirement would overburden the judiciary with policymaking, inverting the amendment's intent to curb state tyranny into a tool for imposing national norms on local and personal interactions.^[54] Proponents also highlight prudential benefits, including enhanced rule of law through predictable boundaries that deter judicial activism. The Rehnquist Court's preference for categorical rules over fact-intensive entanglement inquiries, evident in decisions like Jackson v. Metropolitan Edison Co. (1974)—where a privately owned utility's termination of service was deemed non-state action despite heavy regulation—aimed to avoid the doctrinal instability of expansive tests that could classify regulated entities as state actors on a case-by-case basis.^[56]^[29] Empirical observations of the doctrine's application in lower courts underscore this: overly broad readings have led to inconsistent outcomes, whereas restraint promotes deference to legislative processes for addressing private harms, aligning with federalism by reserving extraordinary constitutional remedies for genuine abuses of public authority.^[14] Critics of expansion further note that it conflates state inaction with affirmative endorsement, potentially compelling government intervention in private disputes and undermining separation of powers, as courts lack democratic accountability for reshaping social relations.^[57]

Perspectives Favoring Expansion

Scholars favoring expansion of the state action doctrine maintain that the Supreme Court's restrictive approach, exemplified by decisions like the Civil Rights Cases (1883), contravenes the Fourteenth Amendment's historical purpose of protecting fundamental rights from private as well as public interference.^[56] They point to Reconstruction-era legislation, including the Civil Rights Act of 1866 and the Enforcement Act of 1870, where Congress targeted private discrimination and violence, reflecting the Amendment's framers' intent—evidenced by support from 21 of 22 senators who voted for ratification—to empower federal intervention against non-state actors.^[56] This perspective posits that Section 5 of the Fourteenth Amendment authorizes Congress to enforce prohibitions on private conduct infringing rights, overriding judicial limitations that prioritize private autonomy over democratic accountability.^[56] A key rationale involves recognizing pervasive state involvement through background legal principles, such as contract and property law, which underpin private actions and thus constitute de facto state action in most disputes.^[56] Proponents argue for a "totality of the circumstances" test, as applied in Brentwood Academy v. Tennessee Secondary School Athletic Ass'n (531 U.S. 288, 2001), to capture subtle entanglements rather than rigid thresholds, ensuring courts do not shield private entities exercising public-like authority from constitutional scrutiny.^[56] In cases like DeShaney v. Winnebago County (489 U.S. 189, 1989), where state officials conducted 20 home visits yet failed to intervene against private harm, expansionists contend such inaction equates to affirmative enablement, aligning with the Amendment's protective mandate against private violence.^[56] Amid privatization trends, where private firms handle core governmental functions like prisons or utilities, advocates urge reviving and broadening the public function doctrine to impose constitutional duties on these actors, preventing evasion of oversight through delegation.^[58] Martha Minow highlights the doctrine's potential for horizontal application of norms, as in Shelley v. Kraemer (334 U.S. 1, 1948), where judicial enforcement of private covenants triggered state action, and proposes case-by-case balancing to adapt to contexts like private arbitration or online platforms wielding monopoly-like control.^[58] To enhance accountability, flexible interpretations of nexus and joint action tests are recommended, treating them as evaluative tools rather than barriers, thereby subjecting hybrid public-private arrangements—such as state-subsidized housing or contracted services—to equal protection and due process requirements.^[59] This approach, while critiqued for blurring public-private lines, is defended as essential to realizing collective responsibility for constitutional values in an era of outsourced governance.^[58]

Scholarly and Empirical Critiques

Scholars have critiqued the state action doctrine for its perceived indeterminacy and inconsistent application across cases, arguing that the multi-factor tests—such as public function, entanglement, or nexus—fail to provide predictable guidance, resulting in doctrinal muddle.^[55] For instance, progressive commentators like Cass Sunstein contend that the doctrine rests on an arbitrary common-law baseline, overlooking how government enforcement of private rights effectively constitutes state action, thereby shielding inequalities in resource distribution from constitutional scrutiny.^[55] Similarly, Louis Michael Seidman and Mark Tushnet assert that post-New Deal realities erase meaningful distinctions between state action and inaction, as government non-intervention actively perpetuates harms, exemplified by cases like DeShaney v. Winnebago County (1989), where failures to protect were deemed non-actionable.^[55] These critiques, often rooted in egalitarian aims, posit that the doctrine unduly privileges private autonomy over broader constitutional norms like equality, though defenders counter that such expansions risk constitutionalizing ordinary disputes resolvable through legislation or markets.^[55] Empirical analyses of lower court applications reveal significant variability, with federal circuits employing disparate tests—up to seven identified in the Ninth Circuit—leading to conflicting outcomes on analogous facts.^[14] For example, claims involving private entities performing traditional public functions, such as policing or firefighting, succeed only when plenary state authority is evident, as in Romanski v. Detroit Entertainment, LLC (6th Cir. 2003), but fail in cases like Ohno v. Yasuma (9th Cir. 2013), where insufficient entanglement was found; overall, state action thresholds bar most claims, fostering a high dismissal rate.^[14] Circuit splits persist, such as the Sixth versus Ninth on police aiding private enforcement (Bays v. City of Fairborn, 6th Cir. 2012, vs. Villegas v. City of Gilroy, 9th Cir. 2008), underscoring the doctrine's case-by-case nature as a barrier to uniform enforcement rather than a robust liability framework.^[14] State courts mirror this inconsistency, often distinguishing or limiting Supreme Court precedents like Shelley v. Kraemer (1948) to avoid broader implications.^[14] Critics further argue that the doctrine's rigidity perpetuates a "double standard" in discrimination cases, requiring less state involvement for racial claims than others, potentially undermining equal protection's reach without empirical justification for such selectivity.^[14] However, empirical patterns suggest the doctrine effectively contains constitutional claims to governmental conduct, preventing judicial overreach into private spheres where statutory remedies, like the Civil Rights Act of 1964, have addressed harms without doctrinal overhaul.^[55] This containment aligns with causal realities of limited state resources, as expansive interpretations could flood courts with private disputes, diluting focus on core public accountability.^[14]

References

[1]
State Action Doctrine | U.S. Constitution Annotated - Law.Cornell.Edu
“Freedom of the individual to choose his associates or his neighbors, to use and dispose of his property as he sees fit, to be irrational, arbitrary, capricious ...
[2]
[PDF] The State Action Doctrine in State and Federal Courts
The fourteenth amendment to the United States Constitution provides that no state shall deny equal protection or due process of law to any person.
[3]
Things Invisible To See: State Action & Private Property
This Article revisits the state action doctrine, a judicial invention that shields “private” or “non-governmental” discrimination from constitutional scrutiny.Missing: definition | Show results with:definition
[4]
Epiphenomenal or Constructive?: The State Action Doctrine(s) and ...
Critiques of the state action doctrine typically take two forms. Critics either point out that the doctrine itself is muddled, confused, and inconsistent, or ...Missing: controversies | Show results with:controversies
[5]
state action requirement | Wex - Law.Cornell.Edu
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 ...
[6]
https://www.law.cornell.edu/constitution/amendmentxiv
[7]
[PDF] The Intent of the Framer: John Bingham's Fourteenth Amendment
[T]his Amendment takes from no State any right that ever pertained to it. No ... limited to correcting state action but also state inaction in failing to.
[8]
[PDF] Congressional Debate on the 14th Amendment - Copyright OUP 2013
They championed a Fourteenth Amendment that declared,. Congress shall have power to make all laws necessary and proper to secure all citizens of the. United ...
[9]
[PDF] THE ORIGINAL MEANING OF “PRIVILEGES OR IMMUNITIES” THE ...
The Privileges or Immunities Clause of the Fourteenth Amendment reads: “No State shall make or enforce any law which shall abridge the privi-.
[10]
[PDF] Te Original Meaning of the Fourteenth Amendment
Te Fourteenth Amendment, as Barnett and Ber- nick read it, authorizes the federal government to protect the civil rights of citizens in the states. Tis, they ...
[11]
Civil Rights Cases | 109 U.S. 3 (1883)
Case Commentary. This is one of the earliest articulations of the state action doctrine that limits the Fourteenth Amendment. If an action is taken by a ...
[12]
The Civil Rights Cases (1883) - The National Constitution Center
“It is State action of a particular character that is prohibited. Individual invasion of individual rights is not the subject-matter of the amendment.”.<|control11|><|separator|>
[13]
The Civil Rights Cases - Teaching American History
The Supreme Court concluded that Congress lacked the power to ban private discrimination, a ruling whose effects were not overcome for another eight decades.
[14]
[PDF] An In-Depth Look at the State Action Doctrine in State and Lower ...
Since the Supreme Court's decision in Lugar, the state action doctrine requires "[1] an alleged constitutional deprivation 'caused by the exercise of some ...
[15]
[PDF] The Fourteenth Amendment and the State Action Doctrine
The state action doctrine of the fourteenth amendment may conveniently be divided into two categories: those cases where the state or an agent thereof has ...
[16]
UNITED STATES v. CRUIKSHANK ET AL. | Supreme Court | US Law
The fourteenth amendment prohibits a State from depriving any person of life, liberty, or property, without due process of law; but this adds nothing to the ...Missing: doctrine | Show results with:doctrine
[17]
Slaughterhouse Cases | 83 U.S. 36 (1872)
The Privileges or Immunities Clause of the Fourteenth Amendment is limited to federal citizenship rather than extending to state citizenship.
[18]
The Civil Rights Cases | Oyez
The Civil Rights Act of 1875 affirmed the equality of all persons in the enjoyment of transportation facilities, in hotels and inns, and in theaters and places ...
[19]
Moss v. University of Notre Dame Du Lac - Harvard Law Review
Apr 10, 2017 · Diamond, State Action in the Public Function Doctrine: Are There Really Public Functions?, 13 U. Rich. L. Rev. 579, 581 (1979). Return to ...
[20]
MARSH v. STATE OF ALABAMA. | Supreme Court - Law.Cornell.Edu
The Court calls attention to the fact that the owners of public utilities, bridges, ferries, turnpikes and railroads are subject to state regulation of rates ...
[21]
Marsh v. Alabama | Oyez
While the town was owned by a private entity, it was open for use by the public, who are entitled to the freedoms of speech and religion. The Court employed ...Missing: function doctrine
[22]
TERRY et al. v. ADAMS et al. | Supreme Court - Law.Cornell.Edu
This case raises questions concerning the constitutional power of a Texas county political organization called the Jaybird Democratic Association or Jaybird ...
[23]
Catherine JACKSON, etc., Petitioner, v. METROPOLITAN EDISON ...
Petitioner brought suit against respondent, a privately owned and operated utility corporation which holds a certificate of public convenience issued by the ...
[24]
Edmonson v. Leesville Concrete Co., 500 U.S. 614 (1991)
... state action than the building of roads and provision of public ... The public-function doctrine requires that the private actor exercise "a power ...<|separator|>
[25]
MANHATTAN COMMUNITY ACCESS CORP. v. HALLECK
Jun 17, 2019 · Under that doctrine, as relevant here, a private entity may be considered a state actor when it exercises a function “traditionally exclusively ...
[26]
Manhattan Community Access Corp. v. Halleck - Oyez
Feb 25, 2019 · FCC to find that New York City had “delegated to MNN the traditionally public function of administering and regulating speech in the public ...
[27]
Manhattan Community Access Corp. v. Halleck - Harvard Law Review
Nov 8, 2019 · The Court held that a private operator of a public access TV channel was not a state actor bound by the First Amendment.
[28]
Burton v. Wilmington Parking Authority | 365 U.S. 715 (1961)
State action often is imputed to the actions of a private party that has a symbiotic relationship with the state. Read More. Syllabus. U.S. Supreme Court.
[29]
Jackson v. Metropolitan Edison Co. | 419 U.S. 345 (1974)
"The primary object of the Public Utility Law is not to establish monopolies or to guarantee the security of investments in public service corporations, but to ...
[30]
[PDF] Less is More: Decluttering the State Action Doctrine
61 This test applies in situations where the state so closely encourages a party's activity that the private actor is said to be "cloaked with the authority of ...
[31]
State Action in the 20th Century – Civil Liberties: Cases and Materials
In the mid-20th century, a Supreme Court increasingly concerned with protecting the civil rights of racial minorities strategically relaxed the state action ...
[32]
Marsh v. Alabama | 326 U.S. 501 (1946)
3. People living in company-owned towns are free citizens of their State and country, just as residents of municipalities, and there is no more reason for ...
[33]
Shelley v. Kraemer | 334 U.S. 1 (1948)
The court ruled that while racially restrictive real estate covenants are not void, courts cannot enforce them as it would be state action under the Fourteenth ...
[34]
Shelley v. Kraemer | Oyez
A case in which the Court ruled that enforcement of racially restrictive covenants were a violation of the Equal Protection Clause of the Fourteenth ...
[35]
Burton v. Wilmington Parking Authority - Oyez
Burton filed suit seeking an injunction preventing the restaurant from operating in a racially discriminatory manner on the ground that doing so violated the ...
[36]
[PDF] STATE ACTION AND THE PUBLIC/PRIVATE DISTINCTION
For a survey of cases that expanded the notion of what consti- tutes state action in the early to mid-twentieth century, see Reitman, 387 U.S. at 379–80; and.
[37]
National Collegiate Athletic Association v. Tarkanian - Quimbee
The National Collegiate Athletic Association is not a state actor whose actions can trigger due process protections under the Fourteenth Amendment to the US ...
[38]
Edmonson v. Leesville Concrete Co., Inc. | 500 U.S. 614 (1991)
Petitioner Edmonson sued respondent Leesville Concrete Co. in the District Court, alleging that Leesville's negligence had caused him personal injury.
[39]
Edmonson v. Leesville Concrete Co., 500 U.S. 614 (1991)
... Leesville's exercise of peremptory challenges was pursuant to a course of state action and is therefore subject to constitutional requirements under the ...
[40]
Brentwood Academy v. Tennessee Secondary School Athletic Assn.
In reversing, the Court of Appeals concluded that there was no state action. Question. May a statewide association, incorporated to regulate interscholastic ...
[41]
Brentwood Academy v. Tennessee Secondary School Athletic Assn.
The District Court granted Brentwood summary judgment, enjoining the rule's enforcement, but the Sixth Circuit found no state action and reversed.
[42]
[PDF] 17-1702 Manhattan Community Access Corp. v. Halleck (06/17/2019)
Jun 17, 2019 · The pro- ducers sued, claiming that MNN violated their First Amendment free-speech rights when it restricted their access to the public access.
[43]
State Action Doctrine and Free Speech | U.S. Constitution Annotated
Starting with the “public function” test, the Court extended the First Amendment to apply to the actions of a private party in Marsh ...
[44]
NetChoice, the Supreme Court, and the State Action Doctrine
Feb 28, 2024 · ... Free Speech Clause prohibits only governmental abridgment of speech. The Free Speech Clause does not prohibit private abridgment of speech.
[45]
Opinion analysis: Court holds that First Amendment does not apply ...
Jun 17, 2019 · The First Amendment bars the government from restricting freedom of speech, but it does not generally apply to private actors, like corporations ...
[46]
First Amendment State Action Doctrine - U.S. Constitution - FindLaw
Jul 25, 2024 · Our First Amendment rights are generally protected from government action that intrudes upon them, known as state action.<|separator|>
[47]
In These Five Social Media Speech Cases, Supreme Court Set ...
Aug 14, 2024 · The US Supreme Court addressed government's various roles with respect to speech on social media in five cases reviewed in its recently completed term.
[48]
Supreme Court Clarifies First Amendment and Standing Standards ...
Jul 18, 2024 · Supreme Court Clarifies First Amendment and Standing Standards Applicable to Social Media Content Moderation Policy Challenges. Jul 18, 2024.
[49]
The First Amendment and Platform Content Moderation
Jul 8, 2024 · On July 1, 2024, the Supreme Court rejected both lower courts' rulings and remanded them for a new trial. The trajectory of the Texas and ...
[50]
[PDF] 23-411 Murthy v. Missouri (06/26/2024) - Supreme Court
Jun 26, 2024 · The state plaintiffs assert a sovereign interest in hearing from their citizens on social media, but they have not identified any specific ...
[51]
Intro.9.2.3 Murthy v. Missouri: The First Amendment and Government ...
Mar 18, 2024 · Murthy v. Missouri concerned whether the federal government's involvement in influencing content moderation choices at private social media companies
[52]
Pruneyard Shopping Center v. Robins | 447 U.S. 74 (1980)
The California Supreme Court reversed, holding that the California Constitution protects speech and petitioning, reasonably exercised, in shopping centers.
[53]
[PDF] An Argument in Favor of Strict Adherence to the "State Action ...
Justice Bradley contended that otherwise Congress would have the power to control individual action not only in the area of equal protection of the laws, but ...Missing: perspectives favoring
[54]
[PDF] Is Abandoning State Action Asking Too Much of the Constitution
First, the state action doctrine reflects a legitimate distinction between government and private conduct and the dangers each poses to constitutional rights.
[55]
[PDF] The State Action Principle and Its Critics - Virginia Law Review
As we will discuss, the normative justifica- tions for the state action requirement are related to the principle that the Constitution mandates hardly any ...
[56]
[PDF] THE STATE ACTION DOCTRINE AND THE PRINCIPLE OF ...
The state action doctrine is somewhat of a mystery to law students, ... the state action doctrine means that the people have discretion to legislate ...
[57]
[PDF] State Action and the Constitution's Middle Band
Aug 10, 2017 · When the government fails to act, the state action doctrine leaves decisions to individuals, who are permitted to violate what would otherwise ...
[58]
[PDF] Alternatives to the State Action Doctrine in the Era of Privatization ...
The state action doctrine attaches individual rights to government action, but is considered confusing and incoherent, and a precondition for judicial ...<|separator|>
[59]
[PDF] The State of the State Action Doctrine: A Search for Accountability
Thus, a major criticism of the docY trine has been that it insufficiently promotes accountability, at the exY pense of individual rights and liberties142a ...Missing: controversies | Show results with:controversies