Column: Applying the Constitution to Private Actors (New York Law Journal)
By Christopher Dunn — With the notable exception of the Thirteenth Amendment’s ban on slavery, the individual liberties guaranteed by the United States Constitution protect against actions by government officials but not against actions by private persons or entities. Because of this, civil-rights lawsuits seeking to vindicate federal constitutional rights are limited to those situations where there is “state action,” the term used to describe the action of government officials exercising their governmental power. Nonetheless, in many instances people are the victims of civil-rights violations that occur in circumstances involving both government officials and private actors. In the 1960s the United States Supreme Court adopted an expansive view of state action, opening the door to wide-ranging civil-rights litigation against private actors. Since then, however, the Court has substantially narrowed the situations in which actions by nongovernmental actors can be deemed to be state action. Two recent cases -- one from the Eighth Circuit and one from the Southern District of New York -- involving private actors, police officers, and the First Amendment demonstrate, however, an important approach to extending constitutional obligations to private actors. The Rise and Fall of State Action One of the notable developments in the expansion of civil rights in the 1960's was the Supreme Court’s willingness to extend constitutional obligations to private actors through an expansion of the concept of state action. A high-water mark in this area was the Court’s decision in Burton v. Wilmington Parking Authority, which challenged the exclusion of blacks from a private restaurant. The restaurant at issue in Burton was the Eagle Coffee Shoppe, located in Wilmington, Delaware. It operated in a commercial space that was part of a parking garage that a government agency -- the Wilmington Parking Authority -- had constructed and operated. Having parked his car in the garage, a black man, William Burton, attempted to eat in the coffee shop, only to be refused service. He then sued both the parking authority and the coffee shop for violating his equal protection rights under the Fourteenth Amendment. The issue before the Supreme Court was whether the coffee shop was a state actor for purposes of the Constitution, which the Court readily found to be the case. In doing so, the Court relied on the lease relationship between the coffee shop and the parking authority, on the fact that the parking garage and the restaurant mutually benefited from their commercial relationship, and the fact that the parking authority had relied on public funds to erect the building in which the restaurant was located. These considerations, combined with the fact that the coffee shop was physically part of the parking garage, “indicates that degree of state participation and involvement in discriminatory action which it was the design of the Fourteenth Amendment to condemn.” And, lest there be any question about where the Court’s sentiment lay on the issue, it added, It is irony amounting to grave injustice that in one part of a single building, erected and maintained with public funds by an agency of the State to serve a public purpose, all person have equal rights, while in another portion, also serving the public, a Negro is a second-class citizen, offensive because of his race and unentitled to service . . . . Ironic and unjust as this discrimination was, the Court long ago abandoned the view of state action that made a private business that leased space in a government-owned building subject to the Fourteenth Amendment. As a general matter, the Court has moved to a position that requires, regardless of the general economic or operational relationship between the government and the private entity, that the government have played a significant role in the specific policy or action at issue. The Court has explained this shift in terms of trying to strike an appropriate balance between imposing constitutional obligations on state actors while preserving a realm of freedom for private persons and entities. Thus, as the Court explained in one of its most recent state-action decisions: Our cases try to plot a line between state action subject to Fourteenth Amendment scrutiny and private conduct (however exceptionable) that is not. The judicial obligation is not only to preserve an area of individual freedom by limiting the reach of federal law and avoid the imposition of responsibility on a State for conduct it could not control, but also to assure that constitutional standards are invoked when it can be said that the State is responsible for the specific conduct of which the plaintiff complains. . . . Our cases have identified a host of facts that can bear on the fairness of such an attribution. We have, for example, held that a challenged activity may be state action when it results from the State’s exercise of coercive power, when the State provides significant encouragement, either overt or covert, or when a private actor operates as a willful participant in joint activity with the State or its agents. The constriction of state action doctrine to require a showing that the government is a moving force behind the specific policy or action challenged has made it far more difficult to hold private actors responsible for constitutional violations. In two recent cases, however, courts have held private entities to be state actors in conjunction with police actions taken against people engaged in First Amendment activity even when the government played no role in the policies or actions of the private entity. These cases illustrate a significant option for enforcing constitutional rights against nongovernmental actors. Policing Speech at a Private Air Show The Eighth Circuit’s 2007 decision in Wickersham v. City of Columbia arose out of an annual air show held at a municipal airport by a private veterans’ organization authorized to use the airport for the event by the city council of Columbia, Missouri. Columbia police officers were present at the airport throughout the show, which was open to the public. The veterans’ organization controlled all aspects of the air show, and, among the polices it imposed on those attending the show were restrictions on expressive activity. Specifically, it prohibited leafletting, petitioning, political campaigning, and “unauthorized” signs. At the 2004 air show a woman attempted to distribute anti-war fliers, and a man attempted to collect signatures for an initiative advocating renewable energy. Columbia police officers threatened to arrest the woman, who then left. Similarly, the officers confronted the man and issued him a summons when he refused to stop petitioning. The two then sued the city and the veterans’ organization, claiming that the organization was “a state actor in its imposition of restrictions on free speech given the degree of joint participation between [the organization] and the city in staging the air show and enforcing the restrictions.” The District Court agreed and enjoined both from interfering with certain First Amendment activity at the air show. Only the veterans’ organization appealed, and the primary issue confronting the Eighth Circuit was whether the private organization qualified as a state actor. At the outset of its analysis, the Court of Appeals noted that, though the state-actor inquiry depends on the specific facts of each case, “[t]he one unyielding requirement is that there be a ‘close nexus’ not merely between the state and the private party, but between the state and the alleged deprivation itself.” Yet, though the police had played no role in the formulation of the speech restrictions imposed by the veterans’ group, the court nonetheless found that police enforcement of the policy was sufficient to convert the veterans’ organization into a state actor for purposes of the First Amendment claim: “The direct role of the Columbia police in enforcing [the private organization’s] speech restrictions provided the critical nexus between the challenged conduct and the exercise of state authority.” In reaching this conclusion, the court rejected the organization’s argument that its contract with the city “transformed the airport into its own temporary private property over which it had the right to decide who was welcome and who was not and thereafter to seek police assistance in ejecting trespassers.” Distinguishing the situation where private parties simply seek police assistance, the court explained: The contributions of the Columbia police go beyond the kind of neutral assistance that would normally be offered to private citizens in enforcing the law of trespass. . . . . Here, the police department’s security plan instructed the officers to enforce [the private organization’s] rules rather than city ordinances, and police took an active role in identifying and intercepting protesters at the air show . . . . When a private entity has acted jointly and intentionally with the police pursuant to a customary plan, it is proper to hold that entity accountable for the actions which it helped bring about. Policing Speech at Lincoln Center Closer to home, a decision issued last August by Southern District Judge Naomi Reice Buchwald took this approach one step further. Forbes v. City of New York arose out of the arrest of a person attending an Arlo Guthrie concert in an outdoor area of Lincoln Center that is parks department property leased to Lincoln Center. The concert took place the week before the start of the 2004 Republican National Convention and in the midst of a public controversy over New York City’s refusal to allow protesters to hold a rally on the Great Lawn of nearby Central Park. According to Judge Buchwald’s opinion, the atmosphere of the concert was politically charged and during a break between songs one spectator -- the plaintiff Daniel Forbes -- shouted out, “Central Park is not a grass museum. Open the Park. The Constitution is more important than grass.” This prompted private Lincoln Center security officers to approach Mr. Forbes, who essentially ignored them. Lincoln Center then requested police assistance, and four NYPD officers arrived on the scene, arrested Mr. Forbes, and took him to a local precinct and charged him with minor offenses. He then sued the NYPD and Lincoln Center, claiming that both had violated his First Amendment rights by singling him out because of the content of his speech. In conjunction with that claim, he contended that Lincoln Center had a vested interest in the City’s rules governing the Great Lawn because those rules allowed Lincoln Center to use the area for certain concerts. Focusing on the issue of whether private Lincoln Center could be treated as a state actor for purposes of Mr. Forbes’ First Amendment claim, Judge Buchwald rejected arguments that Lincoln Center was a state actor because its actions took place in a public park, because of its lease arrangement with New York City, or because it was performing a state function by providing security services through its private security officers. Judge Buchwald did find, however, at least for purposes of surviving a motion to dismiss, that the plaintiff had adequately alleged that “based on an agreement between the City and Lincoln Center to chill speech urging greater access to the Great Lawn, the police would arrest those who advocated greater access to the Great Lawn and were identified by the Lincoln Center Defendants.” Though she was “skeptical that plaintiffs will ultimately be able to prove this conspiracy,” she found this theory to be legally sufficient to convert Lincoln Center into a state actor with respect to the First Amendment claim. In doing so, Judge Buchwald sought to emphasize -- as had the Eighth Circuit in Wickersham -– that the case before her was not one in which a private entity had simply requested the assistance of the police to deal with a trespasser, a scenario that occurs on a daily basis. Nonetheless, she recognized that this case was different from Wickersham in that the police at the air show were an integral part of that event while there was no evidence of police involvement in the Lincoln Center concert beyond their being summoned by Lincoln Center to arrest Mr. Forbes. Looking Forward As the Supreme Court has narrowed the circumstances in which private actors are deemed to be state actors, it has become increasingly difficult to hold nongovernmental entities responsible for constitutional violations, even when those entities have had a very close relationship with the government. Nonetheless, civil-rights advocates can still pursue private actors, and these two recent cases illustrate how police enforcement of private policies provide one important path for doing so.