Loren Jacobson Assistant Professor, UNT Dallas College of Law
Can the NFL punish football players for kneeling during the national anthem? Can Twitter or other social media companies ban Donald Trump? What about the First Amendment? Doesn’t it protect the right to free speech? In the past few years, protests against police brutality and presidential Twitter storms have raised these questions. So, what does the Constitution say? Does the First Amendment prevent the NFL from firing protesting players or Twitter from banning the President?
The Constitution was enacted and ratified to put in place a federal government and to provide limitations on that government. In other words, the Constitution tells us how our national government will be set up and tells us the duties and powers of each branch of government. It also limits both the federal and state governments in certain ways. In particular, the Bill of Rights, which is comprised of the first ten amendments to the Constitution, limits the government’s ability to infringe upon individual rights. But the Bill of Rights does not set out a list of rights that belong to the people. Instead, it tells the government it cannot interfere with those rights. The First Amendment is a good example of this. The First Amendment does not say “all individuals have a right to free speech.” Instead, the First Amendment says: “Congress shall make no law . . . abridging the freedom of speech . . .”¹ The language of the First Amendment, like the other provisions in the Bill of Rights, thus acts as a prohibition only on the government—literally, on Congress.
Although the First Amendment, by its words, applies to Congress, the Supreme Court has held that the prohibitions contained in the First Amendment and most of the other provisions of the Bill of Rights also apply to the states.² Thus, the Bill of Rights also limits the states’ ability to infringe upon the personal liberties protected by those provisions, including the First Amendment right to free speech.³ In sum, then, the provisions of the Constitution and the Bill of Rights apply only to the federal government and the states. This means they do not apply to private people or businesses. Thus, the NFL and Twitter are not bound by the limitations imposed by the Constitution, including the First Amendment.
But what happens if a private entity, such as a business, is regulated by the federal government? Currently, Twitter and other social media companies are not regulated by the states or the federal government, but what if the federal government did decide to regulate social media the way it does other utilities, including TV and radio? Would regulation by the government be sufficient to subject Twitter to the Constitution? As a general matter, the answer is no. The Supreme Court has held that government regulation alone is not enough to make a private company have to obey the Constitution. In one case, the Court said that a private electric company that received a monopoly from the state and was heavily regulated by the state could not be considered a state actor that had to comply with the Constitution.⁴ Similarly, the Supreme Court has held that a private club that receives a liquor license from the state will also not be subject to the Constitution.⁵ Thus, government regulation alone will not make a private company have to abide by the Constitution’s prohibitions against infringement of individual liberties.
What about the receipt of federal or state money? NFL teams receive billions of dollars in tax subsidies and other benefits from state and local governments.⁶ If a private entity gets money or other subsidies from federal, state, or local government, will that mean it has to comply with the Constitution? While the receipt of federal money could subject a private business to federal laws, as a general matter, receiving federal, state, or local dollars does not make a private entity subject to the Constitution. Indeed, in one case, the Supreme Court held that a non-profit private school could not be considered a state actor and therefore did not have to abide by the Constitution even though the school received 90 – 99% of its funding from public monies!⁷ In sum, then, even receipt of a considerable amount of federal, state, or local money does not mean a private entity will be bound by the Constitution. Because government regulation and receipt of government funds do not subject private entities to the Constitution, private companies that contract with the government,⁸ health care entities that receive Medicare and Medicaid dollars,⁹ highly regulated private companies, such as utilities,¹⁰ and other private entities like the NFL and Twitter do not have to respect the liberties protected by the Bill of Rights.
There are a couple of exceptions to this general rule that private actors and entities are not subject to the Constitution. First, if a private entity can be said to be exercising a traditional, exclusive function of government, it may be considered a public entity and therefore will have to abide by the Constitution. The Supreme Court has only found a limited number of functions to be traditionally and exclusively exercised by the government. In one case, the Supreme Court found a private entity that was running and maintaining a municipal park should be subject to the Constitution.¹¹ In another case, where private entities were holding primaries for elections, the Supreme Court also held that these entities were fulfilling a function—running elections for state office—that is traditionally and exclusively one that governments exercise.¹² But providing schooling, for example, is not considered to fall into this category, because while providing schooling has been a function of state governments, it is not a function that state law requires to be exclusively provided by the government.¹³Indeed, traditionally, private schools have existed side by side with public schools. Likewise, while some utilities are run by state and local governments, the provision of electric services also has not been traditionally, exclusively provided by the government.¹⁴Thus, while a private entity could be required to abide by the Constitution if it were exercising a function traditionally committed exclusively to the government, such situations are rare.
The Supreme Court has also held that where a private entity is completely “entangled” or “entwined”¹⁵ with the government or has a “symbiotic relationship”¹⁶ with the government, it can be subject to the Constitution. Again, these situations are rare and also very fact-specific, and usually involve a private actor using state law and relying on a state actor (such as a sheriff or court clerk) to accomplish the action that is said to be unconstitutional.¹⁷ In the overwhelming majority of cases, courts have been unwilling to find the kind of entanglement or symbiotic relationship that would make a private entity have to obey the Constitution.
To summarize, while there are a few limited circumstances under which private entities may be subject to the Constitution, in the vast majority of situations, they are not. Thus, the First Amendment protects your right to free speech, but only as against the government, not private actors. That means that the State of Texas cannot prohibit you from burning an American flag,¹⁸ but NorthPark Mall can prevent you from protesting in the food court.¹⁹ Because the Constitution does not apply to private actors, it does not protect individuals from private conduct. Any decision by the NFL to limit players’ ability to protest (or even a decision to fire a player for protesting) therefore does not violate the First Amendment. And Twitter’s decision to ban former President Trump does not either.
Sources ¹ U.S. Const. amend. I, cl. 2. ² See Gitlow v. New York, 268 U.S. 652, 666 (1925) (holding that freedom of speech is among the “fundamental and personal rights and ‘liberties’ protected . . . from impairment by the States.”); see also, e.g., Mapp v. Ohio, 367 U.S. 643, 650 (1961) (holding that the prohibitions on “police incursion into privacy” contained in the Fourth Amendment apply to the States). ³ The exceptions to this are that the states do not have to criminally indict individuals through use of a presentment or grand jury, as required by the Fifth Amendment, Hurtado v. California, 4 S. Ct. 111 (1884), or abide by the requirement in the Seventh Amendment to provide individuals with jury trials in civil cases, Minneapolis & St. Louis R.R. Co. v. Bombolis, 241 U.S. 211 (1916). Although the Supreme Court has not ruled on this issue, the states also are presumed not to be bound by the Third Amendment, which prohibits the quartering of soldiers during private homes during peace time. See U.S. Const. amend. III. ⁴ Jackson v. Metro. Edison Co., 419 U.S. 345 (1974). ⁵ Moose Lodge No. 107 v. Irvis, 407 U.S. 163 (1972). ⁶ See Chris Isidore, NFL gets billions in subsidies from U.S. taxpayers, CNN Business (Jan. 30, 2015), available at https://money.cnn.com/2015/01/30/news/companies/nfl-taxpayers/ (last visited Feb. 13, 2021). ⁷ Rendell-Baker v. Kohn, 457 U.S. 830 (1982). ⁸ Id. at 841 (“[A]cts of . . . private contractors do not become acts of the government by reason of their significant or even total engagement in performing public contracts.”).
⁹ See, e.g., Blum v. Yaretsky, 457 U.S. 991 (1982) (holding that a nursing home that received Medicaid funding was not bound by the Constitution’s due process requirements). “Due process” is the requirement in the Fifth Amendment and Fourteenth Amendment of the Constitution that people be provided fair procedures before having their liberty or property taken away or infringed upon. This generally means that individuals are entitled to notice and some form of a hearing before being deprived of their liberty or property. See Mathews v. Eldridge, 424 U.S. 319 (1976). ¹⁰ Jackson v. Metro. Edison Co., 419 U.S. 345 (1974). ¹¹ Evans v. Newton, 382 U.S. 296 (1966). ¹² Terry v. Adams, 345 U.S. 461 (1953). ¹³ See, e.g., Rendell-Baker v. Kohn, 457 U.S. 830, 842 (1982) (holding that state law did not provide that public schools were the only entities that could provide education in the state and thus the provision of education was not an exclusive government function). ¹⁴ Jackson, 419 U.S. at 353 (holding that state law does not require the state exclusively to provide electricity and thus the electricity company could not be subject to the Constitution). ¹⁵ Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass’n, 531 U.S. 288, 302-03 (2001). ¹⁶ See, e.g., Burton v. Wilmington Parking Auth., 365 U.S. 715, 724 (1961) (describing the relationship between the government and the private entity to “confer on each an incidental variety of mutual benefits”). ¹⁷ See Lugar v. Edmondson Oil Co., 457 U.S. 922 (1982). ¹⁸ Texas v. Johnson, 491 U.S. 397 (1989). ¹⁹ Hudgens v. Nat’l Labor Relations Bd., 424 U.S. 507 (1976).