Amdt1.2.2.4 Procedural Matters and Freedom of Speech: State Action

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

The question of when broadcast companies are engaged in governmental action subject to the First Amendment has historically divided the Court. 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.6The radio station had a policy of refusing to sell air time to persons seeking to express opinions on controversial issues.7 Three Justices joined a plurality opinion concluding that the radio station was not engaged in governmental action when it enforced this policy.8 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.9 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.10 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.11 And three Justices would not have decided the state action question.12 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.13

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.14 Emphasizing the limited number of functions that met this standard under the Court’s precedents,15 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.16 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.17 In the majority’s view, the city’s selection of MNN and the state’s extensive regulation of MNN did not in and of themselves create state action.18


  1.  Jump to essay-1Through interpretation of the Fourteenth Amendment, the prohibition extends to the states as well. See Bill of Rights: The Fourteenth Amendment and Incorporation, infra. 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).
  2.  Jump to essay-2See Fourteenth Amendment: Equal Protection of the Laws: Scope and Application: State Action, infra.
  3.  Jump to essay-3Manhattan Cmty. Access Corp. v. Halleck, 587 U.S. ___, No. 17-702, slip op. at 6 (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).
  4.  Jump to essay-4513 U.S. 374, 383, 394 (1995); see also Dep’t of Transp. v. Ass’n of Am. R.R., 575 U.S. ___, No. 13-1080, slip op. at 11 (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).
  5.  Jump to essay-5Lebron, 513 U.S. at 391–93, 398.
  6.  Jump to essay-6412 U.S. 94 (1973).
  7.  Jump to essay-7Id. at 98.
  8.  Jump to essay-8Id. at 120 (plurality opinion of Burger, C.J., and Stewart and Rehnquist, JJ.).
  9.  Jump to essay-9Id. at 119–20.
  10.  Jump to essay-10Id. at 120.
  11.  Jump to essay-11Id. at 150 (Douglas, J., concurring in the judgment); id. at 172–73 (Brennan and Marshall, JJ., dissenting).
  12.  Jump to essay-12See id. at 171 (Brennan, J., dissenting) (noting that Justices White, Blackmun, and Powell would not have reached the state action question).
  13.  Jump to essay-13Id. at 129 (majority opinion).
  14.  Jump to essay-14587 U.S. ___, No. 17-702, slip op. at 2–3, 6 (2019).
  15.  Jump to essay-15Id. 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).
  16.  Jump to essay-16Id. at 7.
  17.  Jump to essay-17Id. at 10.
  18.  Jump to essay-18See 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). Cf. Pub. Utils. Comm’n v. Pollak, 343 U.S. 451, 462 (1952). 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. Manhattan Cmty. Access Corp., slip op. at 14–15.