Amendment 1 — State Action Doctrine And Free Speech

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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](https://www.law.cornell.edu/constitution-conan/amendment-1/state-action-doctrine-and-free-speech#fn1amd1 " 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). ") As such, the First Amendment is subject to a “state action” (or “governmental action” ) limitation similar to that applicable to the Fifth and Fourteenth Amendment s.[2](https://www.law.cornell.edu/constitution-conan/amendment-1/state-action-doctrine-and-free-speech#fn2amd1 " See, e.g., . ") 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](https://www.law.cornell.edu/constitution-conan/amendment-1/state-action-doctrine-and-free-speech#fn3amd1 " 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). ") 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](https://www.law.cornell.edu/constitution-conan/amendment-1/state-action-doctrine-and-free-speech#fn4amd1 " 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). ") 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](https://www.law.cornell.edu/constitution-conan/amendment-1/state-action-doctrine-and-free-speech#fn5amd1 " Lebron, 513 U.S. at 391–93, 398. ")

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](https://www.law.cornell.edu/constitution-conan/amendment-1/state-action-doctrine-and-free-speech#fn6amd1 " 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. ") 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](https://www.law.cornell.edu/constitution-conan/amendment-1/state-action-doctrine-and-free-speech#fn7amd1 " Id. at 502–03. ") Under these circumstances, the Court held that “the corporation’s property interests” did not “settle the question” [8](https://www.law.cornell.edu/constitution-conan/amendment-1/state-action-doctrine-and-free-speech#fn8amd1 " Id. at 505. ") : “[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](https://www.law.cornell.edu/constitution-conan/amendment-1/state-action-doctrine-and-free-speech#fn9amd1 " 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). ") Consequently, the corporation could not be permitted “to govern a community of citizens” in a way that “restrict[ed] their fundamental liberties.” [10](https://www.law.cornell.edu/constitution-conan/amendment-1/state-action-doctrine-and-free-speech#fn10amd1 " Id. at 509. ")

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](https://www.law.cornell.edu/constitution-conan/amendment-1/state-action-doctrine-and-free-speech#fn11amd1 " 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). ") 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](https://www.law.cornell.edu/constitution-conan/amendment-1/state-action-doctrine-and-free-speech#fn12amd1 " 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). ") 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](https://www.law.cornell.edu/constitution-conan/amendment-1/state-action-doctrine-and-free-speech#fn13amd1 " Hudgens v. NLRB, 424 U.S. 507, 520 (1976). ") 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](https://www.law.cornell.edu/constitution-conan/amendment-1/state-action-doctrine-and-free-speech#fn14amd1 " Id. at 521. ") 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](https://www.law.cornell.edu/constitution-conan/amendment-1/state-action-doctrine-and-free-speech#fn15amd1 " Id. ") 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](https://www.law.cornell.edu/constitution-conan/amendment-1/state-action-doctrine-and-free-speech#fn16amd1 " Lloyd Corp. v. Tanner, 407 U.S. 551, 569 (1972). ") By contrast, the disputed shopping center had not assumed “municipal functions or power.” [17](https://www.law.cornell.edu/constitution-conan/amendment-1/state-action-doctrine-and-free-speech#fn17amd1 " Id. ") 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](https://www.law.cornell.edu/constitution-conan/amendment-1/state-action-doctrine-and-free-speech#fn18amd1 " Id. at 569–70. ")

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](https://www.law.cornell.edu/constitution-conan/amendment-1/state-action-doctrine-and-free-speech#fn19amd1 " Manhattan Cmty. Access Corp. v. Halleck, No. 17-702, slip op. at 2–3, 6 (U.S. June 17, 2019) ") Emphasizing the limited number of functions that met this standard under the Court’s precedents,[20](https://www.law.cornell.edu/constitution-conan/amendment-1/state-action-doctrine-and-free-speech#fn20amd1 " 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