Civil Rights and Civil Liberties

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. This shift was explained 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:

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. Recently, however, two 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.

Speech at a Private Air Show

The Eighth Circuit’s 2007 decision in Wickersham v. City of Columbia² arose out of an annual air show held at a municipal airport in 2004 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 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 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,