Constitutional Baselines: First Amendment Theory, State Action and the "New Realism"

Abstract

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.