Also known as: public functions · public functions doctrine
Written by attorneys — see sources below.
A doctrine holding that private conduct amounts to state action when the private actor performs a function traditionally and exclusively reserved to the government. The doctrine triggers constitutional constraints such as equal protection or free speech protections on the private actor. Courts apply it only when the function has been the exclusive prerogative of the state rather than one shared with private entities.
Penelope Price, a private plaintiff in a civil contract dispute, used peremptory challenges to remove all Black venire members. The trial judge oversaw the selection process and enforced the strikes. Because jury selection is a traditional public function performed with court participation, the discriminatory strikes are treated as state action and violate equal protection.
Premier Manufacturing owned and operated an entire town including sidewalks and streets open to the public. When Paul Peterson attempted to distribute religious literature on those sidewalks, company security stopped him. Because the company performed the traditional public function of maintaining a municipality, its restrictions are subject to First Amendment limits.
Chickasaw, Alabama, is a suburb of Mobile owned entirely by the Gulf Shipbuilding Corporation. The property includes residential buildings, streets, a sewage system and disposal plant, and a business block containing stores and a United States post office. A deputy sheriff of Mobile County, paid by the corporation, serves as the town policeman. The business block and its sidewalks serve as a regular shopping center for residents and the public. Company-owned roads connect to a nearby four-lane public highway. Nothing distinguishes the area from any other town except corporate title. Grace Marsh, a Jehovah’s Witness, entered the sidewalk in front of the business block near the post office and began distributing religious literature. The corporation had posted notices declaring the property private and prohibiting street vendors, agents, or solicitation of any kind without written permission. Marsh was warned that distribution required a permit, was told no permit would be issued, and was asked to leave. She refused and was arrested by the company-paid deputy. Marsh was charged in state court with violating Title 14, § 426 of the 1940 Alabama Code, which makes it a crime to enter or remain on the premises of another after having been warned not to do so. She was convicted. The Alabama Court of Appeals affirmed at 21 So. 2d 558, holding the statute constitutional as applied because title remained in the corporation and public use had not created an irrevocable dedication under Alabama law. The Alabama Supreme Court denied certiorari at 246 Ala. 539, 21 So. 2d 564. The case reached the United States Supreme Court on appeal under 28 U.S.C. § 344(a). Many people across the United States live in company-owned towns, particularly in industries such as bituminous coal mining where, in the period 1922–1923, roughly half of miners resided in employer-owned housing.
View casePaula Pierce, a newspaper reporter, refused to answer grand jury questions about confidential sources. She argued that forcing disclosure would impair the press function of informing the public. Because gathering and reporting news is not a function traditionally and exclusively reserved to the government, the reporter receives no special constitutional exemption from the duty to testify.
In November 1969, Paul Branzburg, a staff reporter for the Courier-Journal newspaper in Louisville, Kentucky, published an article describing his observations of two individuals synthesizing hashish from marijuana in Jefferson County. The article included a photograph and stated that Branzburg had promised not to reveal the identities of the two. He was subsequently subpoenaed by the Jefferson County grand jury and refused to identify the individuals he had observed. A state trial court ordered him to answer, and the Kentucky Court of Appeals denied his petition for relief. In January 1971, Branzburg published a second article detailing drug use in Frankfort, Kentucky, based on interviews with several dozen users over two weeks. He was subpoenaed by the Franklin County grand jury to testify about violations of drug statutes. The Court of Appeals denied the requested writs and rejected his First Amendment claim. This Court granted certiorari. In July 1970, Paul Pappas, a television newsman-photographer, was assigned to cover civil disorders in New Bedford, Massachusetts, involving the Black Panthers. He entered Panther headquarters under an agreement not to disclose what he saw or heard inside except for an anticipated police raid, which did not occur. Two months later, he was summoned before the Bristol County grand jury but refused to answer questions about his observations inside the headquarters. The Massachusetts Supreme Judicial Court held that he must appear and testify. In February 1970, Earl Caldwell, a New York Times reporter covering the Black Panther Party in San Francisco, received a subpoena to appear before a federal grand jury investigating possible violations of federal law by the group, including threats against the President. The District Court denied the motion to quash but issued a protective order. Caldwell refused to appear and was held in contempt. The Court of Appeals reversed, recognizing a qualified privilege. This Court granted certiorari and consolidated the cases.
View casePatricia Patel managed a municipally owned park under a private contract. After a local newspaper criticized her handling of public funds, she sued for libel. Because the facts do not show performance of an exclusive public function triggering state action, the case turns on separate First Amendment standards for public officials.
In the 1950s a public controversy developed over the operation of the Belknap County Recreation Area, a ski resort and recreational facility owned and operated by Belknap County, New Hampshire. Respondent Baer was employed by the three elected Belknap County Commissioners as Supervisor of the Area and was directly responsible for its management and financial affairs. In 1959 the New Hampshire Legislature enacted a statute transferring control of the Recreation Area to a new five-member commission. At least in part to give the new regime a fresh start, Baer was discharged. Six months later, in January 1960 during the first ski season under the new commission, petitioner Rosenblatt, an unpaid columnist for the Laconia Evening Citizen, published a column that compared cash income under the prior and current administrations and asked what had happened to all the money in prior years. Baer filed a civil libel action in New Hampshire Superior Court alleging that the column contained defamatory falsehoods concerning his performance. A jury awarded him damages. The New Hampshire Supreme Court affirmed the judgment in an opinion reported at 106 N. H. 26, 203 A. 2d 773. Between the trial and the decision of the appeal, the United States Supreme Court decided New York Times Co. v. Sullivan. The Supreme Court granted certiorari and directed the parties to address whether Baer was a public official under that decision.
View casePrism Analytics owned Grand Central Terminal and sought to build a large office tower above it. New York City denied the permit under its landmarks law to preserve the historic structure. Because the dispute centers on regulatory takings rather than state action by a private entity, the public function doctrine does not control the Fifth Amendment analysis.
In 1965 New York City enacted the Landmarks Preservation Law, which created an eleven-member Landmarks Preservation Commission and authorized it to designate buildings at least thirty years old that possess special historical or aesthetic interest. The law required owners of designated landmarks to obtain Commission approval before altering exterior architectural features and imposed an affirmative duty to keep those features in good repair. In August 1967 the Commission designated Grand Central Terminal a landmark and the city tax block it occupies a landmark site; the Board of Estimate confirmed the designation the following month. Penn Central Transportation Co. and its affiliates owned the Terminal, an eight-story Beaux-Arts structure completed in 1913 that served as the main station for the New York Central and Harlem lines. On January 22, 1968, Penn Central entered a fifty-year renewable lease with UGP Properties, Inc., under which UGP agreed to construct a multistory office building cantilevered above the Terminal and to pay Penn Central at least three million dollars annually after construction. Penn Central and UGP submitted two plans prepared by architect Marcel Breuer: Breuer I, a fifty-five-story tower resting on the Terminal roof, and Breuer II Revised, a fifty-three-story building that would have removed part of the 42d Street facade. After four days of hearings at which over 80 witnesses testified, the Commission denied this application as to both proposals. Penn Central filed suit in New York Supreme Court, Trial Term, seeking a declaratory judgment, injunctive relief, and damages for a temporary taking. The trial court granted the injunctive and declaratory relief. The Appellate Division reversed, holding that Penn Central had failed to prove deprivation of all reasonable beneficial use. The New York Court of Appeals affirmed, concluding that the Terminal could still earn a reasonable return and that transferable development rights provided significant compensation. The Supreme Court noted probable jurisdiction.
View casePlatinum Partners refused to sell a home to Priya Prasad solely because of her race. Prasad sued under federal civil rights statutes. Because the claim rests on Thirteenth Amendment enforcement power rather than state action by a private party performing a public function, the public function doctrine is not the basis for liability.
In September 1965 Joseph Lee Jones and his wife, who are Negroes, sought to purchase a home in the Paddock Woods subdivision of St. Louis County, Missouri, from the Alfred H. Mayer Company and one of its officers. The company refused to sell them a house solely because the Joneses are Negroes. Subsequently, on September 2, 1965, the Joneses filed a complaint in the United States District Court for the Eastern District of Missouri. The complaint alleged the refusal to sell and sought injunctive relief together with damages under 42 U.S.C. § 1982. The District Court dismissed the complaint for failure to state a cause of action, and the Court of Appeals for the Eighth Circuit affirmed the dismissal. The Supreme Court granted certiorari to consider the questions presented. While the case was pending, Congress enacted the Civil Rights Act of 1968 containing a Fair Housing Title, but that statute did not cover the respondents' development until January 1, 1969, and had no effect on the pending litigation. The provision invoked by the petitioners originated as section 1 of the Civil Rights Act of 1866 and was re-enacted in 1870.
View caseThe public function doctrine focuses solely on whether the private actor performs a task traditionally and exclusively reserved to the government. The symbiotic relationship test instead examines financial interdependence and mutual benefits between the state and the private party. Both can produce state action but rest on distinct factual triggers.
No. A privately owned shopping mall lacks the attributes of a municipality and does not perform a function traditionally and exclusively reserved to the government. Therefore its owners may exclude picketers without violating the First Amendment.
A private political organization that conducts preprimary elections effectively determining public office candidates performs an exclusive public function. Its racially discriminatory selection process therefore constitutes state action subject to equal protection requirements.
Jury selection is a traditional governmental function conducted with significant court participation. Private litigants exercising peremptory challenges during that process therefore engage in state action and may not discriminate on the basis of race.