App of the BOR to the States and Private Conduct

Question 1

Application of the Bill of Rights to the States

Answer 1

The Constitution generally applies only to government actions, not to the actions of private individuals.

Question 2

State Action doctrine

Answer 2

Under the state action doctrine, private actors will sometimes be treated as government actors and will be bound by the Constitution; Public function exception, Symbiosis and Joint Participation exception, Government encouragement or facilitation exception, Entwinement exception.

Question 3

Public Function Exception

Answer 3

A private actor may be treated as a state actor if the private actor is performing a function that traditionally has been exclusively reserved to the government. (e.g. A P claimed that a private corporation violated the 1st Am. guarantee of religious freedom by criminalizing the distribution of religious literature on the streets of a company town. Bc the operation of a municipality typically is an exclusively governmental function, the private corporation was a state actor was bound by the 1st Amendment.

Question 4

Entanglement Exception

Answer 4

Under this exception, the Constitution applies if the government affirmatively authorizes, encourages, or facilitates private conduct that violates the Constitution. The entanglement exception cases have arisen primarily in four areas: judicial and law enforcement actions, government licensing and regulation, government subsidies, and voter initiatives permitting discrimination.

Question 5

Entanglement (Symbiosis and Joint participation)

Answer 5

Form of entanglement. A private actor may be deemed a state actor if the government has placed itself in a position of interdependence with the private actor, such that the government is a joint participant in the challenged conduct. This exception focuses on the interrelationship between the state and the private actor, particularly with respect to any symbiosis, or mutual benefits, that the government and the private actor may realize. Under this exception, the Constitution applies if the government affirmatively authorizes, encourages, or facilitates private conduct that violates the Constitution.

Question 6

Entanglement (Government Encouragement or Facilitation).

Answer 6

Form of entanglement. State action will be found if the state actor commands, facilitates, or encourages the private actor to take the challenged action. Generally requires more than the state’s mere acquiescence, regulation, or funding. Instead, the state must somehow compel or provide the means for the private actor to take the challenged action.

Question 7

Entwinement

Answer 7

The courts will sometimes find state action if the government is intimately involved, or inextricably intertwined, in the private actor’s activities.