‘Congress Shall Make No Law’: State Action Explained

The First Amendment limits only governmental actors: federal, state and local. The first 45 words of the Bill of Rights generally do not apply to private actors, be they private companies, private universities or private people.

The First Amendment begins, “Congress shall make no law.” It does not say “no one” shall make no law. It specifically says “Congress,” which the U.S. Supreme Court has said means the three branches of government at all levels. The 14th Amendment, ratified in 1868, provided a vehicle by which much of the Bill of Rights was extended to state and local governments.

The net effect of this is that while the First Amendment reads “Congress shall make no law,” it really means that no federal, state or local government official shall make any law or policy to limit the freedoms of religion, speech, press, assembly and petition. Stated another way, all government officials — federal, state or local — are subject to the First Amendment.

Justice Brett Kavanaugh explained in Manhattan Community Access Corporation v. Halleck (2019): “The Free Speech Clause of the First Amendment constrains governmental actors and protects private actors. To draw the line between governmental and private, this Court applies what is known as the state-action doctrine.”

The Supreme Court explains state action 

Congress passed the Civil Rights Act of 1875, which prohibited places of public accommodation — hotels, theaters, restaurants, trains, etc. — from discriminating based on race. Congress passed this law to further the purposes of the 13th and 14th Amendments, which outlawed slavery and provided national citizenship for those recently enslaved. Congress knew it needed to do more to combat abject racial discrimination.

However, many private businesses continued to discriminate on the basis of race. People in five states sued under the new federal civil rights law. These five cases were consolidated as The Civil Rights Cases (1883) and reached the U.S. Supreme Court.

The Supreme Court ruled that the Constitution did not reach private acts of discrimination. It determined that Congress exceeded its authority in attempting to regulate these private acts of discrimination, however racist they were. “It is State action of a particular character that is prohibited,” Justice Joseph Bradley wrote for the majority. “Individual invasion of individual rights is not the subject matter of the amendment. It has a deeper and broader scope.”

While this case was about the equal protection clause of the 14th Amendment, it applies equally to the First Amendment and other freedoms in the Bill of Rights. It means clearly that the Constitution and the First Amendment limit the government, not private parties.

What state action means for practical purposes 

The state action doctrine means that the First Amendment applies to public employers, but not private employers. It means that the First Amendment limits public schools but not private schools.

There are exceptions to the state action doctrine, but they generally require the private actor to act in ways traditionally reserved for the government or jointly act with the government. In other words, the private entity must be deeply entangled or entwined with the government. This is rare, and the exceptions are narrow. One such exception was that the Supreme Court ruled in Marsh v. Alabama (1946) that a company-owned town — even though technically private — was a state actor and could be subject to the First Amendment for preventing a Jehovah’s Witness from distributing religious literature on the streets.

This means, for example, that even massive social media companies like Facebook, X or TikTok are not subject to the First Amendment. This is so even though they control so much communication. The concept is controversial. Should a billion-dollar private company that controls or censors speech not be subject to the First Amendment, while a local government official can? On the other hand, government officials often have greater control over people’s lives and rights than private actors. After all, a local sheriff can arrest and imprison someone, a private corporation cannot.

This is not a new debate.

Some vigorously defend the state action doctrine as a vital and useful principle of constitutional law. For example, legal scholars Lillian BeVier and John Harrison defend the state action doctrine in their piece “The State Action Principle and Its Critics.” They explain that a “principal function” of the Constitution is to “establish, empower, and limit government” rather than constrain or limit private actors.

Constitutional law expert Erwin Chemerinsky questioned the doctrine in a 1985 piece in the Northwestern Law Review. He wrote: “I suggest that it is time to begin rethinking state action. It is time to ask again why infringements of the most basic values — speech, privacy, and equality — should be tolerated just because the violator is a private entity rather than the government.”

But the state action doctrine remains settled law.

State action:

• Private companies actively using government buildings or land.
• People acting in their official authority as government employees or representatives.
• A public park managed by private trustees.

Not state action:

• Actions by the NCAA, the Girls Scouts and Boys Scouts, and other associations.
• Private high schools, even if they receive public funds.
• Businesses licensed by the government.
• The government requesting social media companies address misinformation.
• Police officers in Maryland purchasing large quantities of a newspaper containing unfavorable stories about them.

The state action doctrine in First Amendment cases 

The Supreme Court has grappled with the state action doctrine in a variety of cases and scenarios. One of the most hotly contested was Manhattan Community Access Corporation v. Halleck (2019). The case concerned a private corporation that oversaw the public access TV channels in Manhattan, New York. Two documentarians had sued the company, alleging it violated the First Amendment by not airing their documentary and barring them from the channel. 

By a bare 5-4 majority, the court ruled that the private corporation overseeing this public function was not a state actor. Thus, there was no First Amendment violation.

“The threshold problem with [the documentarians’] First Amendment claim is a fundamental one: [the company in question] is a private entity,” wrote Justice Kavanaugh for the majority. 

Justice Sonia Sotomayor, writing for the dissenters, disagreed. She pointed out that Manhattan Community Access Corporation controlled communication over a public forum and, thus, should be considered a state actor.

The court returned to the state action question more recently in Lindke v. Freed (2024), a case involving a city manager deleting comments from his Facebook page. When government officials remove a person from a governmental website that has been opened for public comments, it could violate the First Amendment. It becomes more complicated if the website is the public official’s private account.

The court explained that a government official does engage in state action by removing someone from a social media page if (1) the government official had actual authority to act on the behalf of the government and (2) the government official attempted to act in an official capacity when engaging in the act of censorship. This is a difficult test that will require more litigation to figure out.

RELATED: Does government regulation of social media violate the First Amendment?

Government officials must be careful when removing posts from a public comment section of a governmental website and when removing comments from their own website if that site contains official government business.

The state action doctrine is a difficult and complex area of law. The court’s decisions are divided and do not often seem to fit together well. For example, the court ruled in NCAA v. Tarkanian (1988) that the NCAA, the entity controlling college sports, was not a state actor. However, in Brentwood Academy v. Tennessee Secondary School Athletic Association (2001), the court ruled that a high school athletic association was a state actor.

But the state action doctrine remains an incredibly important doctrine in First Amendment (and all constitutional) law.

David L. Hudson Jr. is a First Amendment fellow with Freedom Forum and an associate professor of law at Belmont University.