The Constitution does not allow government officials to hire private organizations or private citizens to do its dirty work—to do that which the government itself cannot accomplish legally. Yet this is a growing trend in the United States. Increasingly, government officials are deputizing private organizations to manage publicly owned property while granting an unwritten license to violate civil liberties in the process.
In Dubash v. City of Houston, local government officials hired a private nonprofit organization to manage a city park. The nonprofit then restricted First Amendment activity in the city park only allowing certain viewpoints to be expressed.
Obviously, the government cannot censor speech on the basis of viewpoint—this is well codified. The question here is whether a private actor can step into the shoes of government, fulfill a government function, and evade constitutional accountability. We assert it cannot.
Today, the Center for American Liberty filed an amicus brief arguing that when a private actor is hired by the government to fulfill a traditional governmental function, the private actor must be viewed as a state actor with respect to constitutional responsibilities. In other words, the government cannot outsource its speech censorship efforts to private entities.
This is a growing trend. In Jaman v. City of Port Townsend, the city hired the local YMCA to manage city owned recreational facilities, including a public pool. The YMCA then banned an 82-year-old grandmother, Julie Jaman, from using the city owned pool in retaliation to her speech protesting men being allowed to use the lady’s locker rooms and showers. Julie Jaman’s case is ongoing.
The First Amendment prohibits the government from suppressing certain freedoms. But when the government facilitates a “joint action” with a private actor, First Amendment responsibilities must extend to said private actor. Courts cannot allow this free speech loophole to continue. The bottom line, if the government itself cannot suppress speech, it shouldn’t get away with hiring someone else to suppress speech for it.