Less is More: Decluttering the State Action Doctrine
![handle is hein.journals/molr73 and id is 565 raw text is: NOTES
Less Is More: Decluttering the State Action
Doctrine
Wickersham v. City of Columbia]
I. INTRODUCTION
Constitutional restrictions are not one-size-fits-all, restricting all conduct
equally. Instead, the United States Constitution creates a schism between
governmentally controlled domains and privately controlled sectors. The
former are public actors, present throughout the vertical structure of govern-
2
ment, and subject to Constitutional restrictions. The latter are private actors,
unburdened by Constitutional rules, with a degree of freedom and exclusio-
nary power unavailable to governmental entities. But in this 'golden age of
privatization,' where private entities increasingly perform public duties with
governmental backing, the dividing line between public and private actors is
far from clear.4
The distinction between public and private actors, and the resulting ef-
fects on Constitutional claims, is commonly known as the state action doc-
trine.5 This doctrine is often seen as a threshold test, ensuring that a go-
vernmental wrongdoing is the basis for a Constitutional claim, even before
6
the merits of a claim are considered. In use since 1875, the application of
1. 481 F.3d 591 (8th Cir. 2007), cert. denied, 128 S. Ct. 387 (2007).
2. Please note that the term state action implies governmental action at any
level - federal, state, or municipal.
3. See John Fee, The Formal State Action Doctrine and Free Speech Analysis,
83 N.C. L. REV. 569, 571 (2005).
4. Id. at 572 (quoting Paula A. Franzese, Does it Take a Village? Privatization,
Patterns of Restrictiveness and the Demise of the Community, 47 VILL. L. REV. 553,
553 (2002)).
5. Id. at 575 ([T]he state action doctrine holds that a claim based on the Con-
stitution must be dismissed if the alleged injury is not the result of government
wrongdoing.). For example, shopping malls are privately owned and as such have
the ability to restrict speech on their premises while public parks are state-controlled
and therefore cannot arbitrarily restrict speech on its grounds. See, e.g., Lloyd Corp.
v. Tanner, 407 U.S. 551, 559 (1972); Pursley v. City of Fayetteville, 820 F.2d 951
(8th Cir. 1987) (holding that an ordinance prohibiting picketing in front of a residence
was an unconstitutional restriction of free speech since sidewalks are a public forum
and the ordinance was not narrowly tailored as prescribed by the time, place, and
manner doctrine).
6. See infra note 18 and accompanying text.](ViewImageLocal?handle=hein.journals/molr73&div=21&collection=&method=preview&ext=.png&size=3)
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Less is More: Decluttering the State Action Doctrine
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