Occasionally I hear people ask this question. Criminal prosecution for speech of course involves the government prosecuting and imprisoning or fining someone; injunctions of speech involve a court order barring speech; but when one individual sues another, is that really “state action” that’s governed by the First Amendment? Why isn’t it like a private employer firing a private employee, or a private property owner ejecting a demonstrator from his private property, neither of which poses a First Amendment problem? I’ve most recently heard this question about the Snyder v. Phelps intentional infliction of emotional distress jury verdict, but the same could be asked about speech-based verdicts for libel, disclosure of private facts, false light invasion of privacy, unauthorized use of another’s name or likeness, interference with business relations, and the like.
The Court’s answer is well-settled and, in my view, quite correct. Here’s a relevant passage from New York Times v. Sullivan, the leading libel case. (The plaintiff there was a government official, but he was suing the same way any citizen could sue, and of course the First Amendment rules related to libel law don’t just apply to government officials.)
We may dispose at the outset of … the proposition relied on by the State Supreme Court — that “The Fourteenth Amendment is directed against State action and not private action.” That proposition has no application to this case. Although this is a civil lawsuit between private parties, the Alabama courts have applied a state rule of law which petitioners claim to impose invalid restrictions on their constitutional freedoms of speech and press. It matters not that that law has been applied in a civil action and that it is common law only, though supplemented by statute. The test is not the form in which state power has been applied but, whatever the form, whether such power has in fact been exercised.
That, I think, is exactly right. When a government actor (the court system) coercively transfers money from A to B because of A’s speech, that is a restriction on speech. There’s little difference in principle or in practice between the government’s imposing a fine on, say, racist speech and the government’s allowing people who are offended by racist speech to sue and collect damages (whether under a legislatively created statute or a judge-made common-law tort rule). In both situations, there is a government-created rule of law. In both situations, a government actor (a judge or jury) applies the rule of law based on the content of the person’s speech. Both are therefore government-imposed content-based speech restrictions, and should be judged as such.
When a private employer stops paying a private employee because of the employee’s speech, that does not involve government action. When a private property owner ejects a demonstrator because of the demonstrator’s speech, and enforces this ejection through the threat of a trespass lawsuit or a trespass prosecution, then there would be government action in that lawsuit or prosecution — the protection of real property rights does involve government action. But the government action would not be based on a governmental judgment about the content of the speech, only the government’s deciding whether the defendant had stayed on another’s property against the property owner’s wishes. That’s a big part of why trespass law is constitutional even applied to speakers.
Finally, when a person sues another for the breach of a speech-restrictive contract, there is also government action, but constitutionally permissible government action, because government actors do not themselves “define[] the content of publications that would trigger liability”; instead, contract law “simply requires those making promises to keep them. The parties themselves, as in this case, determine the scope of their legal obligations, and any restrictions which may be placed on the publication of truthful information are self-imposed.”
So whenever a court acts coercively — whether to put someone in jail, or to take his money — there’s government action. And when the government action involves restricting speech because of its content (or the supposed harms that flow from its content), without the speaker’s prior contractual permission, that restriction triggers the usual First Amendment scrutiny.
Incidentally, this seems to me to be consistent with the original understanding of the First Amendment. Free speech and free press objections to civil libel and slander lawsuits were often raised in the early decades of the Republic, and while they were often rejected on substantive grounds — the courts took the view that defamatory speech was constitutionally unprotected, whether against civil liability or criminal punishment — they were not rejected on “lack of government action” grounds. Sullivan‘s insight that even civil litigation still involves government power and is thus subject to government constraints seems to have been broadly accepted in the late 1700s and early 1800s. See, e.g., Root v. King, 7 Cow. 613 (N.Y. Supp. 1827); Mayrant v. Richardson, 10 S.C.L. 347 (S.C. Const. Ct. App. 1818); Reid v. Delorme, 4 S.C.L. 76 (S.C. Const. Ct. App. 1806); Harris v. Huntington, 2 Tyl. 129 (Vt. 1802); Am. Mercury, Dec. 26, 1799, at 2 (charge to the jury in Rush v. Cobbett). And in Mayrant, Reid, and Harris (the latter two of which were cases involving the right to petition the government, rather than just the freedom of speech or press more generally), the plaintiff actually prevailed, based partly on constitutional principles.
So the Framers recognized that courts, including courts applying court-made common law rules, were agents of the government and generally subject to constitutional constraints. The early decisions were all state decisions applying state constitutions; but my readings suggest to me that — despite the use of the word “Congress” in the First Amendment — the scope of state freedom of speech/press/petition guarantees was seen as largely interchangeable with each other, and with the First Amendment. (Certainly early federal court cases, even ones applying judge-made speech restrictions and not statutorily enacted ones, treated the First Amendment as at least potentially applicable.) So my sense is that the original understanding of the First Amendment, and also the traditional one in the centuries since the Framing, is that it does apply to civil litigation, though the exact scope of the constitutional rules has of course changed over time.
William Van Alstyne says:
Eugene’s explanation, re state action and the award of damages at issue in the pending case, strikes me as eminently sound. Whether it be an act of a given state legislature, a county or city ordinance, or simply a substantive rule of common law (as in respect to, say,”the intentional infliction of emotional distress,”
it is the “state’s substantive law is the source of the burden on the defendant’s speech and is, accordigly, subject to First Amendment challenge (which challenge it may–or may not–survive)…even as reflected in such ‘bedrock’ cases as N.Y. Times v. Sullivan and(somewhat more recently) Falwell v. Hustler Magazine. here is really no mystery in any of this.
WVA
March 8, 2010, 3:32 pmZathras says:
If the state action in question is only enforcing the transfer of money, why is the unconstitutionality claim even ripe before judgment on the primary claim? There is no case or controversy until a judgment is in place. If a judgment is entered, and they then seek to enforce the judgment, the constitutionality can be addressed, because there is no state action prior to that point.
March 8, 2010, 3:41 pmMatt says:
It seems to me that one can make the argument that the case itself imposes costs on the person making the speech and could have a chilling effect. Allowing for quick dismissal would at least somewhat remove the chilling effect.
March 8, 2010, 4:05 pmohwilleke says:
The hard case is not the exceptional First Amendment case which fits the intuition that court action pursuant to state law constitutes state action.
The harder case is the general rule that it does not constitute state action. For example, a bailbondsman who acts as a bounty hunter vis a client who skipped jail is not considered a state actor and is not subject any of the provisions of constitutional criminal procedure that would otherwise apply, nor is someone working for a bounty to apprehend a criminal at large with whom the bounty hunter is not in privity, nor it the repo man (even if acting pursuant to a court order obtained in advance authorizing the seizure).
The line of no state action cases don’t always get the wrong result, but they do so for the wrong reason in a way that cramps the scope of constitutional rights.
March 8, 2010, 4:40 pmLeopold Stotch says:
While I understand the need for this sort of rule, it has always seemed to me to blur the private/state action line in a way that’s slightly worrisome. Where’s the limiting principle? Based on this reasoning, why can’t an employee fired for speech that his employer finds objectionable — even off the job — claim that by enforcing the employment at will rule in the subsequent lawsuit, the state courts are engaging in state action that violates the First Amendment? The refusal to enforce racially restrictive housing covenants in Shelley v. Kraemer is another example in a different context, albeit an example in which I like the result. Now that we’re starting to develop a meaningful Second Amendment right, can we expect to see courts holding (without statutes commanding them to do so) that employers can’t fire employees for bringing firearms onto company property? As someone who cares about both the RKBA and private property rights, I’m not sure how I’d feel about that result. But wouldn’t it naturally flow from the logic of cases like NYT v. Sullivan and Shelley?
March 8, 2010, 4:56 pmSteve says:
The refusal to enforce racially restrictive housing covenants in Shelley v. Kraemer is another example in a different context, albeit an example in which I like the result.
Judge Bork writes (The Tempting of America, p. 152):
I’m not sure what to tell Judge Bork. The state does make a choice when it decides whether to enforce a contract; in most cases, the contract is enforced as written, but the courts always have the option to decline enforcement of contracts that violate public policy. The state is not simply some robotic enforcement machine that never investigates the nature of the underlying contract.
Judge Bork’s hypothetical, on the other hand, doesn’t involve enforcement of a contract. I suppose it would be vaguely analogous if the guest was still in the home and the owner was suing to eject him. But an action for ejectment doesn’t involve the same sort of scrutiny as an action to enforce a contract; if you’re the lawful owner of the land, you have the right to exclude guests. It’s a netural principle in a way that contract enforcement is not.
It seems clear to me that upholding a common-law claim for damages is a lot more like the contract case than the ejectment case. Common-law courts most certainly make a normative judgment when they decide that a certain type of conduct warrants the payment of damages from A to B. Imagine if the statute books contained no restrictions on your right to bear arms, but the courts chose to recognize some common-law cause of action that says anyone who sees you carrying a gun can sue you for money damages for “creating an apprehension” or somesuch. I sure hope it would be unconstitutional for the courts of some state to recognize that cause of action.
March 8, 2010, 5:39 pmApril 12 roundup says:
[...] “Cyber-bullying” proposal in Suffolk County, N.Y. could criminalize repeated insults [Volokh] “Where’s the State Action in Tort Awards Based on Speech?” [same] [...]
April 12, 2010, 8:52 am