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5 Comm. L. & Pol'y 1 (2000)

handle is hein.journals/comulp5 and id is 1 raw text is: 






COMMUNICATION LAW AND POLICY
Volume 5                 Winter 2000                 Number 1
Copyright © 2000 Lawrence Erlbaum Associates, Inc.




CONSTITUTIONAL BASELINES: FIRST
AMENDMENT THEORY, STATE ACTION
AND THE NEW REALISM


MATTHEW D. BUNKER*

        The First Amendment protection of free speech has
        traditionally been understood to apply only to state
        action, that is, governmental attempts to limit speech.
        Private actors are generally not subject to the strictures
        of the First Amendment. Recently, however, a number of
        constitutional theorists have called the state action
        doctrine into question. These new realists claim that
        private action, no less than state action, can give rise to
        constitutional violations. The new realists do not
        necessarily claim that private actors are universally
        converted into state actors. Instead, the claim is often
        made that the legal background against which private
        actors suppress speech, including the largely
        common-law domains of property, contract and tort law,
        should be the subject of constitutional analysis. This
        paper critiques the work of the new realists and offers
        suggestions for incorporating some of their important
        insights without fundamentally imperiling free speech.

  It is a truism of First Amendment doctrine that the constitutional
free speech and press clauses are triggered only by state action. That
is, unless state or federal governments take some affirmative steps to
limit free expression, the protections of the First Amendment simply
do not apply to the case. A corollary is that private actors' attempts to
curtail speech generally are not subject to constitutional challenge.
Thus, for example, the First Amendment applies to laws passed by


  *Reese Phifer Professor of Journalism and Associate Professor, Univer-
sity of Alabama.

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