On Wed, 05 Mar 2003 09:58:31 -0800, you wrote: > > At 11:03 PM 3/4/03 -0500, Steve Furlong wrote: > >From the article, New York Civil Liberties Union President Stephen > >Gottlieb says, "We believe, most of us, in the Bill of Rights, and we > >believe that protects the freedom to speak." How is Constitutionally- > >protected freedom of speech imperiled when an agent of a private > >corporation asks someone to leave because his speech is offensive? > > Steve is right. Free speech is tested by wearing "Fuck the Army" > t-shirts [1] > in public places, not "Peace" while in some private store.
Not too fast. What about "nonobvious involvement of the state"? Don't prematurely assume this is private, non-state conduct. What connections exist, if any, which link the state to that mall? For example, was the construction of the mall, or the awarding of the permit, or the environmental exceptions made, etc., such that the state has a sufficient role in the existence of the mall so as to implicate by that link the fourteenth amendment's extention of the first amendment to that operation of that mall? Some research should be done to determine the depth of state involvement in that mall before everyone goes running off down the "private mall" path. The state need not occupy the space, or staff and direct the security service or anything else there. "The Civil Rights Cases, 109 U.S. 3 (1883), "embedded in our constitutional law" the principle "that the action inhibited by the first section [Equal Protection Clause] of the Fourteenth Amendment is only such action as may fairly be said to be that of the States. That Amendment erects no shield against merely private conduct, however discriminatory or wrongful." Chief Justice Vinson in Shelley v. Kraemer, 334 U.S. 1, 13 (1948). It was language in the opinion in the Civil Rights Cases, supra, that phrased the broad test of state responsibility under the Fourteenth Amendment, predicting its consequence upon "State action of every kind . . . which denies . . . [365 U.S. 715, 722] the equal protection of the laws." At p. 11. And only two Terms ago, some 75 years later, the same concept of state responsibility was interpreted as necessarily following upon "state participation through any arrangement, management, funds or property." Cooper v. Aaron, 358 U.S. 1, 4 (1958). It is clear, as it always has been since the Civil Rights Cases, supra, that "Individual invasion of individual rights is not the subject-matter of the amendment," at p. 11, and that private conduct abridging individual rights does no violence to the Equal Protection Clause unless to some significant extent the State in any of its manifestations has been found to have become involved in it. Because the virtue of the right to equal protection of the laws could lie only in the breadth of its application, its constitutional assurance was reserved in terms whose imprecision was necessary if the right were to be enjoyed in the variety of individual-state relationships which the Amendment was designed to embrace. For the same reason, to fashion and apply a precise formula for recognition of state responsibility under the Equal Protection Clause is an "impossible task" which "This Court has never attempted." Kotch v. Pilot Comm'rs, 330 U.S. 552, 556 . Only by sifting facts and weighing circumstances can the nonobvious involvement of the State in private conduct be attributed its true significance." U.S. Supreme Court BURTON v. WILMINGTON PKG. AUTH., 365 U.S. 715 (1961) 365 U.S. 715 BURTON v. WILMINGTON PARKING AUTHORITY ET AL. APPEAL FROM THE SUPREME COURT OF DELAWARE. No. 164. Argued February 21, 23, 1961. Decided April 17, 1961.
