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State v. Noah9/11/2000
2d 142 (1988).
A First Amendment violation requires state action. The First Amendment of the United States Constitution states that 'Congress shall make no law . . . abridging the freedom of speech, . . . .' The Constitution does not prohibit a private person's infringement of another's First Amendment rights: 'It forbids only such infringements which may properly be attributable to the State.' Stephanus v. Anderson, 26 Wn. App. 326, 335, 613 P.2d 533 (1980) (citing Lloyd Corp., Ltd. v. Tanner, 407 U.S. 551, 92 S.Ct. 2219, 33 L.Ed.2d 131 (1972)). But private action may constitute state action where the State is significantly intertwined with the acts of the private parties. Stephanus, 26 Wn. App. at 335 (citing Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 98 S.Ct. 1729, 56 L.Ed.2d 185 (1978)). The Washington Supreme Court has held that the 'state action' doctrine applies under Article 1, Section 5 of the Washington Constitution. But the free speech provision of the Constitution applies only against official state action, not to protect against action of private individuals. Southcenter, 113 Wn.2d at 430.
Casebeer argues that judicial enforcement of a settlement agreement constitutes state action. She relies on Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161 (1948), where the United States Supreme Court found state action in the judicial enforcement of a racially restrictive covenant limiting real property ownership to Whites. The state action was the enforcement of the restrictions in the agreement. The Court held that the State did not abstain from acting but used its 'full coercive power of government to deny to petitioners, on the grounds of race or color, the enjoyment of property rights . . . .' Shelley, 334 U.S. at 19.
Shelley is distinguishable. In Shelley, the state action was more than mere judicial enforcement. The courts had to identify prospective African-American purchasers, determine the scope of the racially restrictive covenants and enforce them against the African-Americans. The covenant did not merely involve two private parties: its exclusionary function against all African-Americans required state action. See Stephanus, 26 Wn. App. at 337-39. The excluded parties were not party to the contract; they had not agreed to the restrictions. Rather, they were victims of the covenants between others. Here, the provisions to be enforced were in a settlement agreement, and solely between two private parties, and which had been knowingly and voluntarily entered into.
Casebeer also cites Cohen v. Cowles Media Co., 501 U.S. 663, 668, 111 S.Ct. 2513, 115 L.Ed.2d 586 (1991). In Cohen, the United States Supreme Court found state action where Cohen's only possibility of recovery was under a theory of promissory estoppel. The Court held that the application of this state-law doctrine 'in the absence of a contract creates obligations never explicitly assumed by the parties. These legal obligations would be enforced through the official power of the Minnesota courts. Under our cases, that is enough to constitute 'state action' for purposes of the Fourteenth Amendment.' Cohen, 501 U.S. at 668.
This case is also distinguishable. In Cohen, the state created the duty before it enforced that duty. Unlike Cohen, judicial enforcement of the settlement agreement does not require application of a state common law doctrine to create the duty enforced.
Calof and Casebeer entered into a private agreement and, therefore, have corresponding contractual obligations. Casebeer concedes that the settlement agreement was knowingly and voluntarily entered into. For the existence of a First Amendment violation, state action is requir
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