Private Regulation of Speech

Does principle (5) apply, not just to governmental regulations, but to private restrictions on others’ liberties as well? If Megacorp refuses to hire anyone who supports the Democratic Party - in order that its market clout may affect political messages and bring about the Republican policies it favors - is the right to freedom of expression violated? If Megafarms prevents, through use of the trespass laws, union organizers from gaining access to its farmworkers - because it fears the effects of their messages - has it violated the right of free­dom of expression of the union and the farmworkers? If Mediagiant orders its reporters to slant their stories in favor of the Democrats, on pain of dismissal, is it violating the reporters’ or the audience’s right of freedom of expression? If Gated Community, in pursuance of policies agreed to by all of its homeowners, excludes publishers of tabloids from delivering their papers, even to homeown­ers who would like to receive tabloids, is it violating the homeowners’ and publishers’ freedom of expression?

On the one hand, such private entities, backed by the laws of property, contract, and so forth, are surely acting like governments within the domain those laws carve out for them.

On the other hand, the right of freedom of expression against government would be worthless if it did not entitle private persons to affect messages as they want. A newspaper publisher cannot be prevented by government from giving her slant to the news, and this seems to entail that government must permit the publisher to invoke Track Two laws - contract, property, tort, and so forth - to get her views out, even if this means that her reporters, qua employees, are denied any right of freedom of expression to ignore her orders with impunity.

There is a dilemma here. Private restrictions on speech, enforced through content-neutral Track Two laws, can have as great or greater a magnitude of message effects - what gets said by whom, to whom, and with what impact - as governmental restrictions on messages. Indeed, this point about private re­strictions is just a corollary of the point made earlier that Track Two laws may have more important message effects than the message-targeted laws that fall under principle (5). But if freedom of expression were implicated by the Track

³⁹ The United States Supreme Court did indeed hold that a privately-owned town must afford speakers the same rights as it would be compelled to afford were it a municipal corporation or other political subdivision of the state. See Marsh v. Alabama, 326 U.S. 501 (1946). On the other hand, after first extending Marsh to shopping centers in Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza, Inc., 391 U.S. 308 (1968), the Court quickly retreated in Lloyd Corp. v. Tanner, 407 U.S. 551 (1972), and Hudgens v. NLRB, 424 U.S. 507 (1976), leaving Marsh as the only unrepudiated instance where the Court has applied the Constitution's freedom of speech provision to restrict a concededly private entity.

The state courts have split over whether state constitutional protections of freedom of ex­pression apply to private entities such as large farms and ranches, shopping centers and malls, gated residential communities, apartment and condominium complexes, large warehouse re­tail stores, and the like. For a sample of the wildly varying state supreme court decisions, see Robins v. Pruneyard Shopping Center, 23 Cal. 3d 899 (1979) (shopping center); SamAndrews' Sons v. Agricultural Labor Relations Board, 47 Cal. 3d 157 (1988) (farm); Golden Gateway Center v. Golden Gateway Tenants Ass'n, 26 Cal. 4^th 1013 (2001) (apartment complex); Batchelder v. Allied Stores International, Inc., 388 Mass. 83 (1983) (shopping mall); People v.

There is a tiny number of similar cases outside the United States. For one example, see Case of Appleby and Others v. The United Kingdom, European Court of Human Rights, 6 May 2003 (shopping mall). And in states like California that have interpreted their constitutions to make freedom of expression in some circumstances a right against private property owners, the lower courts have rendered some significant decisions. See, e.g., Laguna Publishing Co. v. Golden Rain Foundation, 131 Cal. App. 3d 816 (1982) (newspaper exclusion in gated community); Laguna PublishingCo. v. GoldenWestPublishingCo., 124 Cal.App. 3d967 (1981) (same);Albertson's, Inc. v. Young, 107 Cal. App. 4^th 106 (2003) (grocery store entrance); Costco Companies, Inc. v. Gallant, 96 Cal. App. 4^th 740 (2002) (warehouse retail store).

Two laws that give private persons, organizations, and corporations the ability to regulate speech within the domains those laws carve out, then freedom of expression would always appear on both sides of every contest. Every set of Track Two laws will produce different private messages and message effects.

A digression is in order here to place this issue in the proper perspective. First, if freedom of expression is, as stated in Chapter One,^{[243] [244] a right against governmental action, how can it even be possible for one to assert it against a private party? One answer is that one’s freedom of expression attack on the speech restrictions issued by the private party are all actually attacks on the government’s laws and acts enforcing those laws that together legally empower the private party to restrict speech. The private party’s speech restriction can be a Track One restriction aimed at the content of messages, a Track Two restriction aimed at the time, place, and manner of expression, or a Track Three subsidy of particular messages. The government’s action, in all of these cases, however, will ordinarily be a Track Two action; for example, the law of property that empowers the private landowner to exclude speakers whose messages she does not like - or the law of contract that requires reporters to write what the publisher wants - is not itself enacted or enforced because of these or other message effects. (If it were, then it would be a Track One, not a Track Two, law.)}

The situation is analogous to that in Shelley v. Kraemerf' the famous “state action” case. There, the courts of Missouri enforced a private racially-restrictive covenant in a residential neighborhood. The Supreme Court held that the judi­cial enforcement of the covenant was state action and therefore subject to the command of the Equal Protection Clause of the Fourteenth Amendment, which forbids the state to deny equal protection of the laws.^[245] The Court went on to hold that because governmental racial restrictions on real estate were unconsti­tutional, and because the judicial enforcement of the racial covenant was state action subject to the Constitution, that enforcement was unconstitutional.

Shelley was quite controversial because it appeared to extend constitutional restrictions to acts of private parties generally through the state’s enforcement of private contract and property rights. The problem was generally thought to lie in the Court’s deeming judicial enforcement to be state action subject to the Constitution. But the problem with Shelley was not that. Rather, the problem was with the Court’s equating qualitatively two distinct forms of state action: discrimination by the state itself and enforcement of private discrimination by the state. Both are state action, but they are qualitatively and constitutionally distinct. State action permitting and enforcing choices of a type the state would be constitutionally forbidden to make is not necessarily or even usu­ally unconstitutional: the state has legitimate and sometimes constitutionally compelled reasons for permitting private actors to choose in ways that the state itself is constitutionally forbidden to choose. Obviously, private actors have reli­gious and political beliefs and autonomy and privacy interests that the state qua state does not have. And the Court never made the argument that the state’s rea­sons for allowing private parties to make legally enforceable racially-restrictive covenants were as deficient constitutionally as whatever reasons the state might have for its mandating racial segregation. This failure to assess the reasons for Missouri’s enforcement of covenants was the problem with Shelley, not the Court’s finding that enforcement was state action.

In the context of private regulation of speech, the government is acting through those Track Two laws and their enforcement that make the private regulation of speech possible. However, as long as those Track Two laws really are Track Two laws and are not enacted because of their message effects, what is true of Track Two generally also applies here: freedom of expression is not implicated.

Perhaps, however, the argument here moves too quickly.

The conclusion to draw from this chapter’s discussion of various special free­dom of expression problems is that none of them turns out to be special after all. Public employee speech is just one more Track One problem of a piece with those discussed in Chapter Four. Government’s resource allocation to the protection of speakers, its allocation of broadcast frequencies, its laws affecting membership in associations, and its property and contract laws giving private parties rights to control others’ speech are all Track Two matters and subject to exactly the same analysis as was put forward in Chapter Two - unless, of course, these governmental actions are taken because of their message effects, which would convert them into Track One or Track Three actions, but not ex­ceptionable ones. And although the question of when private actors become “the government” is an interesting and deep conceptual one, the answer to it, although it bears on the right of freedom of expression, does not bear uniquely on that right, but on all rights against government. Finally, governmental action taken because of employees’ beliefs raises no freedom of expression issue at all.