The Supreme Court's Theory of Private Law
Oman, Nathan B., Solomon, Jason M., Duke Law Journal
Since Sullivan, though, the scope of what is considered state action for First Amendment purposes has continued to grow, (196) and it is worth pausing to consider just how much the factual circumstances of Sullivan differ from those in Snyder. Snyder is an individual citizen whose son died at war and was only in the spotlight because the Westboro Baptist Church decided to show up at his son's funeral. His entanglement with the "state" was simply availing himself of the right of any citizen to bring a civil suit. In contrast, Sullivan basically was the state; he was an elected city commissioner in Montgomery, Alabama. (197) The lawsuit was a part of a strategy--later documented by Anthony Lewis and others--to threaten Northern newspapers that, like the Times, reported on the civil rights movement, in an effort to discourage them from criticizing segregationist policies. (198) That is to say, it was an effort by elected officials to use the legal system to suppress future speech.
In contrast to the factual circumstances of Snyder, in which a private citizen brought an individual lawsuit, consider another First Amendment case, Sorrell v. IMS Health, Inc., (199) also decided in 2011. Vermont had passed a law barring the sale (or give-away) of doctors' prescription records by pharmacies and data miners, unless the doctors gave permission. (200) The prescription records were valuable to companies that were marketing pharmaceuticals to doctors and their patients. (201) So here we have the state of Vermont, speaking through its legislature, telling companies not to do certain activities within its borders, at least without consent. This is clearly state action in a way that Snyder's private lawsuit is not.
The problem with the state-action doctrine is that it does not take into account the differences between the type and extent of state involvement in the Snyder and Sorrell cases. (202) The state-action doctrine is unitary: either something is state action, or it is not. (203) If it is, then full-blown constitutional scrutiny applies; if it is not, then no constitutional scrutiny applies. But the concerns underlying the First Amendment are not necessarily as salient in cases in which a private party brings a lawsuit, as opposed to those in which a state legislature passes a statute, as in Sorrell, or a public official either uses his authority or the courts, as in Sullivan. This is because in providing recourse through the private law, the state is not primarily regulating or punishing speech, as opposed to the effort by Vermont to suppress a certain class of commercial expression.
The effect of this unitary aspect of the state-action doctrine is to exacerbate the tendency to view the common law as an arm of state regulation. After all, regulation is what the state does in the twenty-first century. (204) So if it is indeed the state acting, then that is what it must be doing: regulating conduct. Surely the twenty-first-century state does not provide for a for slightly more civilized duels. (205) Moreover, the acceptance of the "everything is state action" status quo has led the doctrine to bleed over far beyond the specific question that it is designed to answer: whether the government is sufficiently involved in the challenged action such that constitutional protections apply at all. (206) One can agree that common-law actions and enforcement implicate "the state" such that they may be subject to challenge under the Constitution on the one hand, without committing to the view that the animating purpose or function of the common law is state regulation. (207)
A defender of the Court can respond that it is true that the common law can be characterized, perhaps is even best characterized, as serving an interest in redress. Perhaps that is the underlying purpose of private law, at least tort law. But that does not mean that tort law cannot also have the effect of putting a price on certain …
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Publication information: Article title: The Supreme Court's Theory of Private Law. Contributors: Oman, Nathan B. - Author, Solomon, Jason M. - Author. Journal title: Duke Law Journal. Volume: 62. Issue: 6 Publication date: March 2013. Page number: 1144+. © 2009 Duke University, School of Law. COPYRIGHT 2013 Gale Group.
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