[SOUND] Traditionally when constitutional law is taught at the college or the law school level, a distinction is made about the material that deals with the structure of government. As opposed to the material in the course that deals with individual liberties and civil rights. The first five parts of my lecture were about the structure of government, especially focusing on aspects of separation of powers in Federalism. The latter five parts on my lecture focus on individual liberties and civil rights under the Constitution. So the sixth major part of my lecture is titled The Structure of the Constitution's Protection of Individual Liberties. When I say the structure of the Constitution's protection of individualities, I want to cover some general rules that pertain to all of the parts of the Constitution that deal with individual liberties and civil rights. These are basic rules that, as I say, apply any time we're dealing with individual freedom under the Constitution or quality under the Constitution. And I want to develop three points with regard to the structure of the Constitution's protection of individual liberties. The first that I want to focus on is what's often referred to as the state action doctrine. The state action doctrine is the principle that the Constitution and its protection of rights and equality applies only to the government. Private conduct does not have to comply with the Constitution. This is a basic rule. Recently, I was teaching a freshman undergraduate seminar on freedom of speech. And I made the point to them that because they're at the University of California Irvine, a public university, they cannot be punished by the university for their speech, so long as their speech is protected by the First Amendment. But if they went to a private university, then the First Amendment, the protection of freedom of speech, simply wouldn't apply. That's true of all of the parts of the Constitution that deal with individual liberties and equality. For example, if it's a private school, it can search the students' lockers, or backpack, or dorm rooms anytime it wants, and in any way it wants. But if it's a state university, then it can search only consistent with the Fourth Amendment to the Constitution. If a public university wants to expel a student, it has to provide due process, notice and a hearing. But a private university doesn't have to comply with the Constitution, it doesn't have to provide due process. Of course this principle isn't just about universities. Imagine the government is an employer, compared to a private company, make it McDonald's, or Walmart, or AT&T, or even a mom and pop store. If it's the government is an employer, it generally can't fire an employee without some form of due process. But a private employer doesn't ever have to comply with the Constitution or provide due process. This is sometimes called, as I said, the state action doctrine. But here the phrase state action is something of a misnomer. The Constitution applies to government at all levels, federal, state, and local. The Constitution applies to the actions of government officials at all levels, federal, state, and local. The governor, the president, the mayor, Congress, the state legislature, the city council, they all gotta comply with the Constitution. But private entities never have to comply with the Constitution. It's worth thinking about why, and is this desirable? After all, if major corporations like Walmart, AT&T, fire employees for their speech, doesn't it have just an chilling effect an expression as when the government does so? If we want to protect people from arbitrary treatment, then shouldn't we provide due process protections? Regardless whether somebody works for the federal government or works for a private company. There's many answers given as to why we have the state action doctrine. Some say it's because it was the purpose of the Constitution. The Constitution, as originally written, was about creating the national government and limiting its powers. Later the Fourteenth Amendment was adopted to make sure that states didn't deprive people of due process, or deny people equal protection. But it was, again, about the government. It was thought that private conduct, what private business or private universities do, is regulated by other law, statutes, court made law. We didn't need the Constitution to restrain them. Some of it is also about individual freedom. The more the Constitution applies to what people or businesses do, the less freedom they have. The less the Constitution applies, the more freedom that they have. Now of course, their freedom, like to fire somebody's speech or to fire somebody without due process, may mean that others' freedom is compromised. But it's thought the more Constitution applies to private conduct, the more it's limiting liberty, and thus, it's good to have a bright line rule. The Constitution applies to the government, it doesn't apply to private conduct. Now to be clear, legislatures at all levels can adopt statutes that regulate private behavior. It's just that the Constitution applies only to the government. Let me give you some easy examples of this. If a government entity or government official at any level of government discriminates on the basis of race, there could be a challenge that this denies equal protection. But if a private corporation, no matter how large, discriminates on the basis of race, equal protection and the Constitution don't apply. But there are statutes, laws adopted by legislatures that prohibit private discrimination. So for example, the 1964 Civil Rights Act, that I've already alluded to in these lectures, says that hotels and motels cannot discriminate based on race. Title VII of the 1964 Civil Rights Act says that private employers cannot discriminate on the basis of race. The Constitution doesn't apply to private employers. But statutes prohibit private employers from discriminating. In addition to such federal laws, many states have even stricter anti-discrimination laws regulating private behavior. Local governments sometimes have laws prohibiting discrimination. The key is, the Constitution applies to the government, but statutes and ordinances can regulate private behavior as well. There are a couple of narrow exceptions where private conduct has to comply with the Constitution. To understand these exceptions, it's important to put them in historical context. During the late 1940s and 1950s and early 1960s, the Supreme Court was trying to expand the application of the Constitution to deal with private race discrimination. But then when the Civil Rights Act of 1964 was adopted, this seemed less urgent. Also, the composition of the Supreme Court changed in 1969 when Richard Nixon appointed two conservative justices that changed the balance of ideology on the Supreme Court. And since the mid 1960's, the Supreme Court has been much less willing, much less likely to apply these exceptions. So one exception is termed the Public Functions exception. The Public Functions exception says if a private entity is performing a task that's been traditionally, exclusively done by the government, the Constitution applies. Let me give you some obvious examples of this. The most famous case was in the mid 1940s, Marsh v Alabama. Marsh v Alabama involved a company town. A company literally owned all of the land in a town, in a random town. Some Jehovah's Witnesses came there and wanted to distribute literature. The company said, this is private property, the First Amendment doesn't apply, get out. The Supreme Court though, ruled in favor of the Jehovah's Witnesses and against the company. The Supreme Court explained that running a town is something that's been traditionally, exclusively done by the government. When a private entity does it, it has to comply with the Constitution. Another example of this is the so-called White Primary Cases. At the turn of the 20th century, Texas refused to allow African Americans to vote. When Texas was ordered to enfranchise blacks, it then said it would no longer hold political primary elections. It said it would let the political parties hold their own primary elections. The political parties then refused to allow African Americans to vote. The Supreme Court said holding an election for government office, even a primary election, is a task that's been traditionally, exclusively done by the government. When a private entity does it, it has to comply with the Constitution. Or to give a more contemporary example of this, private prisons. Increasingly, government at all levels, federal, state and local are contracting with private companies to run their jails and prisons. Imagine that an inmate's rights are violated within the private prison. Private companies generally don't have to comply with the Constitution. Does this mean that prisoners at a private prison have no rights and no constitutional protection at all? The lower courts have all said that running a prison is an activity that's been traditionally, exclusively, done by the government. After all, it is the coercive power of the government that puts prisoners there and keeps them there. And thus, because running a prison is a traditional public function, it's essential then, that they comply with the Constitution. But this is a very narrow exception. To show you how narrow, I want to talk about a case from the 1970s, and it's called Jackson v Metropolitan Edison. Jackson v Metropolitan Edison involved a private utility company that went to terminate a customer's service. It is clearly established that before a government owned utility can terminate somebody's service, it has to provide notice and a hearing. So for example, the city of Los Angeles has a Department of Water and Power, it is a city utility. Before the Department of Water and Power in Los Angeles can terminate a customer's service, it's gotta write notice of a hearing. Jackson involves a private utility company. And the customer of the private utility company said that it too should have to provide due process, because after all, it's performing a public function. But the Supreme Court ruled in favor of the utility and against the woman whose electricity service is being cut off. The Supreme Court said running a utility is not an activity that's been traditionally, exclusively done by the government. There have long been private utility companies. Thus, no state action, no due process was required. I'll give another example that certainly affects all of us. Privately owned shopping centers. The argument was made that a privately owned shopping center is much like what the town square used to be in a city. If you or I want to distribute literature and reach a large number of people in a short amount of time, what better way to do it than to go to a privately owned shopping center? In some places, like where I live and work, in Irvine, California, it's hard to find any store that's not part of a strip mall or a shopping center. So if you want to reach people, you need to be able to go there. And the question came to the Supreme Court, is there a First Amendment right to use such private property for speech purposes? Because this is how to reach people, performing a public function? And the Supreme Court, in a case called Hudgens v NLRB, said private shopping centers don't have to comply with the Constitution. Private shopping centers by definition are privately owned. The First Amendment doesn't apply. So there's no First Amendment right to go to a private shopping center to picket or hand out leaflets. In some states, under state constitutional law it's different. But in terms of the United States Constitution, which is my focus, there's no state action. And if there's no state action, the First Amendment and the Constitution don't apply. So that's one exception to the state action doctrine, the Public Functions exception.
