State Action

The Fourteenth Amendment limits states, not private persons (the Civil Rights Cases, 1883); private conduct counts as state action when it performs a traditional public function (Marsh v. Alabama, 1946), when courts enforce it (Shelley v. Kraemer, 1948) or when the state is entangled with it (Burton v. Wilmington Parking Authority, 1961).

Note: This is an educational course, not legal advice.

The Fourteenth Amendment says "No State shall…" So even after incorporation, most constitutional rights limit governments, not private people or companies. A private employer that fires someone for a speech, or a private club that excludes members, does not violate the First or Fourteenth Amendment, though a statute may forbid what it did. This is the state action requirement.

Why it works

The line protects two things at once: individual freedom (private choices are not governed by the Constitution) and democratic choice (legislatures may still forbid private discrimination by statute, as Congress did under the Commerce Clause in 1964; see Con Law I). The hard cases come when private and public power blur. The Court has found state action in three main patterns.

Pattern	Leading case	What happened
Public function: a private party does something traditionally and exclusively done by government	Marsh v. Alabama (1946)	a company owned a whole town, streets and all; it could not ban religious leaflets on its sidewalks
Judicial enforcement	Shelley v. Kraemer (1948)	state courts could not enforce racially restrictive covenants between private owners
Entanglement (a "symbiotic relationship")	Burton v. Wilmington Parking Authority (1961)	a restaurant leasing space in a public parking garage, sharing benefits with the public agency, could not refuse Black customers

The Court has also said what is not enough. In Jackson v. Metropolitan Edison Co. (1974) a utility with a state-granted monopoly and heavy regulation was not a state actor when it cut off a customer. In Rendell-Baker v. Kohn (1982) a private school paid almost entirely with public money was not a state actor when it fired teachers. In Manhattan Community Access Corp. v. Halleck (2019) a private nonprofit running public-access cable channels was not one either, because that work is not traditionally and exclusively governmental. Shelley's reasoning has been confined; it is not read to make every court judgment state action.

Key idea

Constitutional rights limit the government. A private party is a state actor only in special patterns: a traditional, exclusive public function (Marsh), court enforcement of discrimination (Shelley), or deep entanglement with the state (Burton). Regulation, licensing and public money alone are not enough (Jackson, Rendell-Baker).

Worked example: A licensed business

A private gym holds a state business license and is inspected by the state. It cancels a member's contract because of his political T-shirt. Can he sue under the First Amendment?

Ask: is the gym the state? A license and inspections are regulation.
Jackson v. Metropolitan Edison: regulation, even heavy regulation, does not make a private business a state actor.
No public function or entanglement is shown.

Answer: No constitutional claim; any remedy would come from statute or contract.

Worked example: A private company runs the town

A mining company owns every street, store and sidewalk in a town where its workers live. It forbids anyone to hand out leaflets on the sidewalks. Is that state action?

A town's streets are a classic public function.
Marsh v. Alabama held a company town bound by the First Amendment.

Answer: Yes; under Marsh the company is treated as the state.

Common mistake

Thinking any regulated, licensed or publicly funded business is a state actor. Look for one of the three patterns instead: a traditionally exclusive public function, court enforcement, or a close, mutually beneficial partnership with the state. A quick check: would the conduct be "the state's own" if you described it in a newspaper?

Sort the cases.

Sources and further reading