The Right to Speak, Write, and Publish Freely: State Constitutional Protection Against Private Abridgment

• Publication year: 1984

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 8, No. 2WINTER 1985

The Right to Speak, Write, and Publish Freely: State Constitutional Protection Against Private Abridgment

Justice Robert F. Utter(fn*)

I. Introduction

State constitutions often provide much stronger and more complete protection for fundamental human rights than does the United States Constitution.(fn1) Paradoxically, however, more judicial and scholarly effort has been devoted to divining the meaning and scope of the United States Bill of Rights than has been expended on all fifty state bills of rights combined. This trend has been especially pronounced in certain "core areas" relating to the rights of free speech and press. The limited protection provided to freedom of expression in the federal Constitution has so overshadowed the corresponding and often stronger state constitutional guarantees that freedom of expression is almost universally referred to as a "first amendment" right.(fn2) One unfortunate consequence of the excessive emphasis on the federal Bill of Rights, however, is that it has led many lawyers and judges to assume, with little evidence or analysis, that state constitutions are bound by the same constraints that the founders of our nation chose to incorporate into the federal Constitution.

This Article makes no such assumptions. Instead, it presents an independent analysis of a fundamental aspect of the free speech provision of the Washington Declaration of Rights, which closely resembles the free speech provisions of many other state constitutions.(fn3) The focus is on whether the Washington free speech provision protects Washingtonians against abridgment of their speech and press rights by private individuals and organizations. To answer this question, this Article examines the nature of state constitutions and government, the case law of other jurisdictions interpreting similar provisions, the text of the Washington provision, the origins of the provision, the historical background of the Washington Constitutional Convention, Washington case law, current social values, and public policy considerations. Analysis of these factors reveals that the Washington Constitution can, was intended to, and does protect free speech rights against many forms of abridgment by private individuals and organizations.(fn4)

II. The Federal "State Action" Doctrine

To understand the importance of state constitutional protection against private abridgment of fundamental rights, one must examine the federal "state action" doctrine. The language of the first and fourteenth amendments(fn5) to the United States Constitution indicates a clear intent to protect speech rights only against abridgment by the federal and state governments,(fn6) although the framers may have intended otherwise.(fn7) State action was recognized first as a prerequisite for a cause of action under the fourteenth amendment in the Civil Rights Cases in 1883.(fn8) Since then, the federal courts have adopted various theories under which essentially private activities have been deemed to be "state action"(fn9) and, consequently, subject to constitutional limitations. These theories, which the federal courts have gradually restricted to very narrow applications, find "state action" when a private actor performs a traditional and exclusively public function, acts under government command or encouragement, or is significantly entwined with the government in some fashion.(fn10)

The public function doctrine requires that the private person or entity be engaged in an activity that is a traditional and exclusive function of government.(fn11) The United States Supreme Court has expressly refused to expand the narrow public function doctrine to include any private actor who opens his or her property to the public.(fn12) Yet, in Marsh v. Alabama,(fn13) the Court seemed to imply such an expansion, noting that "the more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights become circumscribed by the statutory and constitutional rights of those who use it."(fn14) In Amalgamated Food Employees Union v. Logan Valley Plaza,(fn15) the Court applied Marsh to protect a union's right to picket a private business, emphasizing both that the private property was open to the public(fn16) and that the property was the functional equivalent of a business district.(fn17) In Lloyd Corp. v. Tanner(fn18) however, the Court repudiated the expansive interpretation of the public function doctrine suggested by the Marsh and Logan Valley decisions:There is some language in Logan Valley, unnecessary to the decision, suggesting that the key focus of Marsh was upon the "business district," and that whenever a privately owned business district serves the public generally its sidewalks and streets become the functional equivalents of similar public facilities . . . . [T]his would be an incorrect interpretation of the Court's decision in Marsh.(fn19) Thus, although the United States Supreme Court may have briefly recognized a broader "public place" theory of state action in the past, the current public function doctrine seems to be narrowly limited to such clearly governmental activities as the management of elections(fn20) and the maintenance of company towns.(fn21)

The United States Supreme Court has also determined that when legislation compels or encourages certain private activity, the private activity may be characterized as "state action."(fn22) Similarly, the Court has held that when a judge commands a private person to honor a will or contract, such private activity may also be considered "state action."(fn23) Recently, however, the Court has neglected and narrowed,(fn24) though not entirely abandoned,(fn25) these theories.

When significant entwinement exists between the government and a private entity, the Court has sometimes held that actions by the private entity constitute "state action."(fn26) More recent cases, however, greatly restrict application of this doctrine. For instance, the Court once intimated that government licensing and regulation of private entities would be sufficient to subject the private entity to constitutional restraints,(fn27) but subsequent cases have consistently held that government licensing and regulation alone are insufficient to imply "state action,"(fn28) unless the government directly causes or is connected with the challenged practice.(fn29) When the government has subsidized a private entity, the Court has been inconsistent, finding "state action" in some cases(fn30) but not in others.(fn31) If the affairs of government and a private entity were entwined for the economic benefit of both, the Court previously found the entity's acts to constitute "state action,"(fn32) but more recently, the Court has refused to extend constitutional protections in similar situations.(fn33)

The United States Supreme Court has apparently curtailed substantially the doctrines that may be used to apply federal constitutional restraints to private conduct. Even in situations in which constitutional protections were previously theoretically available, the federal courts have displayed increasing reluctance to apply such protection when activities of nongovernmental persons or entities are concerned. This reluctance has led some state courts and commentators to ask whether state constitutions are subject to similar state action limitations, or whether state constitutions may serve to restrain directly any person from infringing on another's fundamental rights.

III. The Nature of State Constitutions and Governments

State constitutions and governments are not subject to the same inherent constraints that prevent the federal Constitution and government from protecting individual rights from private abridgment.(fn34) The United States Constitution is a limited grant of power, authorizing the federal government to exercise only those powers that have been expressly or impliedly delegated to it in the Constitution.(fn35) When any branch of the federal government acts, it must rely on an enumerated power to make its acts constitutional.(fn36)

State constitutions, on the other hand, serve as limitations on the otherwise plenary power of state governments, which can do anything that is not expressly forbidden by the state constitution or by federal law.(fn37) Because it is not generally forbidden, states have always had the power to regulate private conduct.(fn38)

The use of this power to grant citizens constitutional rights against other private individuals and corporations was well accepted in both theory and fact by the time the Washington Constitution was adopted in 1889.(fn39) One scholar who researched the Washington Constitutional Convention early in this century noted that although regulation of private conduct was not within the "legitimate province" of the federal Constitution, it was often included in state constitutions.(fn40)

This concept was recognized and repeated in various forms by the newspapers that covered the convention. One newspaper stated: "The commonplace remark that this constitution when approved by the people, will bind not only individuals but the people's representatives in legislation cannot be repeated too often . . . ."(fn41) Similarly, another observed that "[t]he people of the United States are dependent upon their respective state...