No State Actor, No Problem

Courts have long confined federal constitutional protections to government conduct — a principle known as the state action doctrine. This leaves actions by private actors outside the reach of the Constitution. State constitutions, however, often use expansive language that many courts have interpreted to encompass obligations for private parties as well as government actors. As I explain in No State Actor, No Problem, a forthcoming article in the Syracuse Law Review, state courts have extended constitutional protections into the private sphere in a wide array of contexts, and state constitutions leave plenty of room for further development of rights as applied to private conduct.

State judges have applied state constitutions against private actors in a number of settings, including rejecting contract claims that would require a party to violate a state constitutional duty to protect the environment and allowing claims against a university involving the disclosure of sensitive information. Constitutions have also been used to hold responsible a hospital for retaliating against speech activities, doctors who interfered with the operation of a clinic performing elective abortions, doctors who retaliated against whistleblower patients, a company for sex discrimination in hiring, and an investor-owned utility that denied equal job opportunities to gay people.

One category of cases in which these principles have developed are direct actions against private actors. For example, state courts have taken the lead in upholding free expression in privately owned spaces. The landmark California case, Robins v. Pruneyard Shopping Center, determined that shopping malls are quasi-public forums, which means they are required to support free speech under the California Constitution. Following this precedent, New Jersey, Colorado, and Puerto Rico courts have also upheld the rights to leafleting and protests in shopping malls. Pennsylvania and New Jersey have upheld state free speech rights on private college campuses.

State courts have also pioneered the extension of privacy protections against private actors, sometimes relying on expressly enumerated privacy rights, which exist in the constitutions of five states and Puerto Rico, and sometimes relying on an implied right to privacy. The Puerto Rico Supreme Court’s decision in Arroyo v. Rattan Specialists, for example, barred private employers from mandating polygraph tests, finding that such practices violated the constitutional right to dignity and personal integrity. The Puerto Rico high court also held in Siaca v. Bahia Beach Resort and Golf Club that employers must provide adequate conditions for mothers to breastfeed their babies, as failing to do so violates the right to privacy. And in Belk Arce v. Martínez, it leveraged the Puerto Rico Constitution’s privacy clause to protect an employee who was terminated for not informing his law firm that he married another lawyer in the firm.

Courts have recognized a constitutional right to privacy in states without explicit provisions. For example, in Jegley v. Picado, the Arkansas Supreme Court held that the state has a strong tradition of protecting individual privacy and that the fundamental right to privacy is guaranteed to the citizens of Arkansas. Similarly, in Powell v. State, the Georgia Supreme Court held that there is an implicit right to privacy, stating that “Georgia citizens have a liberty of privacy guaranteed by the Georgia constitutional provision, which declares that no person shall be deprived of liberty except by due process of law.” In Commonwealth v. Wasson, the Kentucky Supreme Court stated that “the right to privacy has been recognized as an integral part of the guaranteed liberty in our 1891 Kentucky Constitution since its inception.^” In Jarvis v. Levine, the Minnesota Supreme Court ruled that the right to privacy arises from a social compact clause. In Right to Choose v. Byrne, the New Jersey Supreme Court ruled that the constitutional right to privacy is one of the inalienable and natural rights of the state constitution. The court stated, “By declaring the right to life, liberty and the pursuit of safety and happiness, Art. I, par. 1 protects the right of privacy, a right that was implicit in the 1844 Constitution.” In Greenberg v. Kimmelman, the New Jersey high court ruled that the right to privacy implicit in the inalienable and natural rights of the state constitution embraces “the right to make procreative decisions, the right of consenting adults to engage in sexual conduct, the right to sterilization, and even the right to terminate life itself.”

State courts have also protected state constitutional interests in the context of traditional tort actions, where a state constitutional guarantee often plays a role related to public policy — a so-called subconstitutional practice. In Foley v. Interactive Data Corporation, for example, the California Supreme Court stated that a private employer can be sued in tort when an employee dismissal breaches a public policy “derived from a statute or a constitutional prohibition.”

Several states support using the state constitution to establish public policy. “Public policy concerns what is right and just and what affects the citizens of the state collectively,” the Illinois Supreme Court has explained. “It is to be found in the state’s constitution and statutes and, when they are silent, in its judicial decisions.” Oregon was among the first to rule that employees could not face penalties for fulfilling jury duty, as this would violate the constitutional right to a jury trial. In Nees v. Hocks, the Oregon Supreme Court allowed the employee’s suit to vindicate a public interest in constitutional jury trials, not only a right personal to the employee. Access to courts to file civil suits can also be a public interest guarded by state constitutions. In Groce v. Foster, the Oklahoma Supreme Court held that under the limited public policy exception to the termination-at-will doctrine, a wrongful discharge action will lie against an employer who fires an employee for refusing to dismiss a lawsuit against a third party. In most states where courts acknowledge a public policy exception to at-will employment, the state constitution is a foundation for such policy.

Using state constitutional principles to limit private defendants has roots in common law decisions that predate modern debates on state action. Tying the public policy element of these torts to a written constitution satisfies the courts’ needs for clarity and guidance from a democratically created source of such values or policies.

Looking to the future, there is a strong argument that state courts should more broadly apply constitutional rights to private action. The expansive language that is often present in state constitutions can serve as a strong foundation for doing so.

When constitutional provisions are articulated in broad, inclusive terms, they lend themselves to interpretations that transcend the traditional public-private divide. For example, the human dignity clause in Article II, Section 1 of the Puerto Rico Constitution affirms that “the dignity of the human being is inviolable.” The human dignity clause in Article II, Section 4 of the Montana Constitution, adapted from the Puerto Rico Constitution, further states, “Neither the state nor any person, firm, corporation, or institution shall discriminate against any person.” The Montana Constitution also includes an inviolable rights clause, a privacy clause, and a duty clause that addresses the right to a healthy environment. These provisions should be interpreted holistically, allowing their principles to be applied to private parties.

Similarly, California’s Inalienable Rights provision in Article I, Section 1 of its constitution underscores fundamental rights such as the right to enjoy life and liberty, to acquire and protect property, and to pursue and obtain happiness and privacy. The expansive nature of this provision, particularly its explicit reference to privacy, provides a robust argument for applying these rights in private contexts. In Hill v. National Collegiate Athletic Association, the California Supreme Court ruled that the right to privacy “creates a right of action against private as well as government entities.”

These interpretations acknowledge the blurring lines between public and private spheres, particularly as private entities wield more significant influence over societal and economic structures.

The use of expansive constitutional texts to apply rights to private actions is rooted in recognizing that fundamental rights should be protected universally, regardless of the actor involved. This approach ensures that constitutional protections are not diminished or rendered ineffective. Instead, expansive interpretations of these texts help reinforce the universality of constitutional rights, ensuring that they apply consistently and comprehensively across all public or private interactions. 

Carlos Chevere-Lugo is an adjunct professor at St. Mary’s School of Law. He is a lawyer from Puerto Rico, admitted to practice in the Puerto Rico Bar and in the U.S. Federal Court for the District of Puerto Rico.

Suggested Citation: Carlos Chevere-Lugo, No State Actor, No Problem, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (Feb. 19, 2025), https://statecourtreport.org/our-work/analysis-opinion/no-state-actor-no-problem