The Formal State Action Doctrine and Free Speech Analysis

Abstract

The state action doctrine is fundamental to constitutional law. Its primary value, however, is not as a threshold requirement, as it is usually understood. The proper function of the state action doctrine is analytical: it requires one to isolate the elements of state action in a case from the elements of private action and focus the constitutional questions on the former. State action exists in some form in every case, but the relevant state action is often constitutional. Proper use of the state action doctrine does not lead to extreme results, but it does have a clarifying effect on substantive constitutional rights.

A formal approach to state action is a prerequisite to resolving constitutional problems in a principled way, such as the extent of one's right to speak in public places. As applied to this problem, a formal state action doctrine need not change the balance of power between those who would engage in public expression and those who would restrict it, but it would improve the way in which we discuss and interpret the freedom of speech. Ultimately a formal approach to state action would lead to a more consistent focus on whether speakers have adequate means of communication, and would not attach dispositive significance to the way in which property rights are allocated.

Keywords: State Action, Freedom of Speech, First Amendment, Constitutional Law, Private Property, Government Actors, Private Actors, Public/Private