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The State Action Requirement for First Amendment Claims

Cole Law Group, PC

Disclaimer: This article is not legal advice. It is intended to give a bit of background information about the state action requirement for First Amendment claims. Each case is different, and there are tactical considerations about when to sue and what claims to bring. For legal advice applicable to your specific situation, always contact an attorney licensed in your state.

What is the State Action Requirement to Make a First Amendment Claim?

The United States Constitution is primarily concerned with issues regarding which branches of government have authority over certain matters, and specifying procedures for conduct and limitations of government power. Individual rights are provided for in the Bill of Rights and other amendments to the Constitution, including the First Amendment.

The text of the First Amendment states: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” The text only states limitations that apply to Congress, which is the textual basis for the state action requirement. However, the First Amendment has been interpreted to apply to infringement of the rights by each branch of the federal government.[i] Also, after the adoption of the Fourteenth Amendment, the rights in the First Amendment apply against state and local governments.[ii]

Why is this important? Because a potential plaintiff can only state a cognizable claim for a First Amendment violation where some sort of state action applies that abridges a First Amendment right such as free speech. This requirement is often ignored by pundits who discuss potential lawsuits as if the state action element does not exist or is always satisfied. Such is certainly not the case.

To best understand this state action distinction, it is useful to examine cases where the Supreme Court has held sufficient state action was present for the Plaintiff to state a claim, and also to discuss hypotheticals where the state action requirement would not be satisfied.

Examples of State Action in First Amendment Free Speech Cases

The United States Supreme Court has considered over 600 cases in which the First Amendment was mentioned. This vast caselaw provides a significant number of examples of state action. The paradigmatic example is where the Federal Congress passes a law that abridges free speech. This is seen in several cases:

  • The Defendant in a criminal trial asserted his conviction for a violation of the Smith Act violated the First Amendment in Denis v. United States.[iii] Denis asserted the Smith Act was state action as a statutory enactment by Congress criminalizing speech that violated the First Amendment. The Court ultimately rejected Denis’ claim, not because the state action element was not satisfied, but as a paradigmatic example, the state action requirement was not discussed in the opinion.
  • The First Amendment state action requirement was also satisfied where a public school board compelled children to say the pledge of allegiance daily in public schools.[iv] In that case, the court famously stated: If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”
  • State action was held satisfied where a Texas state law criminalized flag burning.[v]
  • State action was held satisfied where Alabama State tort law and courts operated to punish the speech of a newspaper.[vi]
  • State action was held satisfied where a Virginia pharmacy regulatory agency prohibited pharmacists from advertising specific drug prices.[vii]

Perhaps the best case to read to understand all the plausible state action claims is Brentwood Academy.[viii] There the court considered a lawsuit alleging Fourteenth and First Amendment rights were violated by disciplinary action by a private sports organization organized by state law. The court discussed at length the different theories for state action claims and held that under the entwinement theory the State of Tennessee was entwined with the TSSAA. Thus, state action was satisfied for the First and Fourteenth Amendment claims raised by Brentwood Academy.

Hypotheticals Where State Action Would Not Be Satisfied

  • If a private school compels children to recite the pledge of allegiance. Even though this is essentially the same facts asBarnette, there is no potential First Amendment claim. Private schools are not state actors, their behavior is not fairly attributable to the State.
  • If a private restaurant refuses to rent a party room to a political cause they do not support. Private restaurants can choose which groups may rent their venue without First Amendment issues. (Other statutory or constitutional law can limit the ability of businesses to discriminate against customers.)
  • If a private homeowners’ association has a rule prohibiting flag burning, there is no state action. This is the same facts asTexas v. Johnson except instead of a state law criminalizing the action, a private organization is acting.
  • If a pharmacist has a contract with private insurance companies not to disclose drug prices, that would not state a First Amendment claim.
  • If an actress has a non-disclosure agreement with a political figure, that private contract would not satisfy state action.

Other Interesting Areas of First Amendment Issues

There are many other interesting issues related to the First Amendment, such as a) the First Amendment rights of corporations[ix]b) the First Amendment requirements that apply to State Tort Laws[x]; and c) the speech conduct distinction.[xi] Categories of speech that are outside the protection of the First Amendment include incitement, fighting words, true threats, and obscenity.[xii]


I hope this article communicated the basics of the state action requirement as it applies to the First Amendment and most Constitutional rights. The First Amendment is a powerful tool in litigation over free speech and freedom of religion claims. However, it only applies where state action is satisfied. If you think you might have a First Amendment or Constitutional rights claim, I encourage you to speak with an attorney licensed in your state as soon as possible. Remember, the law aids the vigilant, not those that sleep on their rights.[xiii]

About the Author: Paul Tennison is a 3rd year law student at Vanderbilt University with over seven years of management, human resources, and leadership experience in the United States Army. Paul continues to serve our country in the Tennessee Army National Guard. Prior to attending law school, Paul served on active duty for five years as a Field Artillery officer, including time spent overseas in South Korea and Germany. Paul is a 2010 West Point graduate and will graduate from Vanderbilt Law School on May 11, 2018.

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