State Action

Government action is required for the Supreme Court to consider any case about the Constitution. This fact is seldom explained in the media as pundits jump at the chance to decry “freedom of speech!” or “due process!” every time a controversial situation arises. The recent news about the NFL and ABC’s show Roseanne are just some examples. The NFL made a new rule that forbids players from kneeling during the national anthem while DisneyABC cancelled Roseanne despite high ratings in response to the show’s star offensively tweeting a racially charged statement.

Depending on your political allegiances, at least one of these issues is bound to raise the question: what happened to the 1 st amendment? The answer often gets lost in the shuffle of talking heads clamoring for their moment on TV. And yet, the answer is a simple one. The Constitution, including the 1 st amendment, does not apply to private parties. The first requirement before the Supreme Court can even consider a case on its merits is whether there was any state action. Disney and the NFL are each private entities that generally speaking have the freedom to run their businesses however they want. The 1 st amendment would only apply if the government is involved.

Of course, “freedom of speech” is more than some words in the Constitution. In modern societies all over the world, the values of free expression are cherished and should be. So, you can always criticize private entities for violating the spirit and philosophy of freedom of speech, but you cannot bring a constitutional legal action against them. The Constitution was written to limit the government’s power, so cases that do not involve the government do not involve the Constitution. Whenever you hear that a private entity is part of a constitutional case, it is always them complaining about some sort of state action. For example, there a recent case was brought involving a baker in Colorado who refused to bake a cake for a same-sex wedding. Originally, he was sued for this refusal, but when the case reached the Supreme Court, the constitutional question was actually about whether the Colorado government could constitutionally force him to bake the cake.

The same can be said of all other types of cases, like discrimination cases. If you were to look up all landmark constitutional cases involving discrimination in schools, they always involve public schools. Brown v. Board of Education was a black family suing the Board of Education of Topeka, Kansas. Similarly, modern cases arguing against affirmative action all involve a public university (like the University of Texas or the University of Michigan).

But wait a minute – aren’t private restaurants and businesses prohibited from discriminating? Yes, but any rules that involve private discrimination are based on state or federal statutes, not the Constitution. Companies cannot discriminate because of laws

passed by local or federal legislatures. The government cannot discriminate because of the Constitution (generally because of the 14 th amendment). So the next time you inevitably hear someone exclaim that something is “unconstitutional,” make sure the government was involved in some way. If you notice a purely private issue between private parties, you can still have an opinion on the situation, but you’ll know that the Constitution has nothing to do with it!

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