Abner S. Greene

Document Type

Article

Publication Title

Journal of Contemporary Legal Issues

Volume

27

Publication Date

2025

Abstract

The constitution of a nation without a state action doctrine might limit private restriction or compulsion of speech just as it limits the state. In such a nation, “free speech beyond the constitution” might not be a particularly meaningful concept. In the United States, however, the First Amendment’s free speech clause limits only what the federal, state, and local governments may do. As a nonconstitutional policy matter, it might or might not be a good idea for the government to impose First Amendment- like restrictions on private actors or for private actors to voluntarily impose First Amendment-like restrictions on themselves. We might also ponder the acceptable scope of informal social sanctions on others for their speech activity.

Why, though, does our Constitution have a fairly strict state action/‌private action line? And, related, how does the Court police that line? These are big questions of constitutional law (and political theory) that span across rights. I will touch on them only briefly here. More to the point of this conference, might we relax the state action line in the free speech setting if private actors take on attributes of the state or if they possess power similar enough to that of the state to warrant imposition of First Amendment (or First Amendment-like) speech rules? And may we analogize this to a flip-side question: when do we properly alter duties and protections for state actors if they take on attributes of (or act as) private actors?

This paper is part of a Symposium on “Free Speech Beyond The Constitution” published in 27 Journal of Contemporary Legal Issues (2025).

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