Private curtailment

Is this right at times curtailed by private actors?

Right	Breakout	Contents
Freedom of Association		Philosophers and political theorists generally agree that it is sometimes necessary to curtail free association, but this agreement does not answer questions of which forms assembly and association can permissibly be restricted, how they should be limited, or who should control their regulation. It often falls to the government to decide when to step in during times of popular uprising or violent protest, but history also shows a number of instances in which private actors have curtailed citizens’ right to free association or assembly. The most common way for private actors can curtail free association is by prohibiting assembly and demonstration on their privately-owned property. In U.S. law, there exists a precedent that protects citizens’ right to free association on public property precisely because the right is not guaranteed when it is practiced on private property. This doctrine was first introduced in 1936, when Jersey City mayor Frank Hague issued an ordinance prohibiting members of the Committee for Industrial Organization (CIO) from gathering in a public space and distributing “communist” literature (Garcia, “Hague v. Committee for Industrial Organization,”). The CIO, with the help of the American Civil Liberties Union, successfully argued that the New Jersey ordinance was unconstitutional under the First Amendment. Hague appealed to the Supreme Court, which upheld the original decision and struck the ordinance down (Garcia, “Hague v. Committee for Industrial Organization,”). Justice Owen Roberts justified the decision for Hague v. Committee for Industrial Organization by likening public spaces such as streets and parks to public forums, in which the free flow of ideas and discourse must be protected under the First Amendment. He made this ruling because he recognized that private actors retained the right to curtail citizens’ right to association when that association occurred on private property. In order to preserve the right to peaceable assembly, the Court’s decision set the precedent for the “public forum” doctrine, which continues to protect the right to association in public spaces to this day (Garcia, “Hague v. Committee for Industrial Organization,”). Writing for The First Amendment Encyclopedia, David Hudson writes that “in the Court’s forum-based approach, the government can impose reasonable time, place, and manner restrictions on speech in all three categories of property, but has limited ability to impose content-based restrictions on traditional or designated public forums” (Hudson, “Public Forum Doctrine - The First Amendment Encyclopedia,”). The doctrine specifically aims to protect peaceful association on public property because the right is not guaranteed when assembly occurs on private property. One example of a private actor using its ownership of property to curtail free association can be observed in the 1994 case of Madsen v. Women’s Health Center, Inc. In this case, the Aware Woman Center for Choice in Melbourne, Florida filed a suit against anti-abortion protestors who had been blocking entrances to the building, harrassing abortion patients, and demonstrating outside of staff members’ homes (“Madsen v. Women's Health Center, Inc.”). A court order was issued, ordering protestors to refrain from trespassing on Center property, blocking its entrances, and abusing staff and patients. When the court order was violated, the “the court created a 36-foot buffer zone around the clinic entrances and driveways (including the public sidewalk) within which all antiabortion speech was banned. It also prohibited excessive noise and images that patients could see or hear during surgery and recovery” (“Madsen v. Women's Health Center, Inc.”). The Supreme Court later upheld the buffer zone rules, but struck down the prohibition of protestors’ practice of showing images to clients. It also ruled that the Florida court’s 300-foot buffer zone that prohibited protestors from approaching clients and staff at the Center and at their homes was too restrictive of First Amendment rights (“Madsen v. Women's Health Center, Inc.”). The ruling, according to Chief Justice Rhenquist, sought to preserve protestors’ right to association and assembly while still protecting the patients and clients from intimidation and abuse (“Madsen v. Women's Health Center, Inc.”). It also serves as a reminder that private citizens still reserve the right to curtail free association if said association makes them feel unsafe or threatened. Both the Madsen and Hague cases illustrate that judges, in particular, have immense power to determine the breadth of citizens’ right to freedom of association as guaranteed in the First Amendment. For example, in the case of Ward v. Rock Against Racism, the Supreme Court determined that free expression in the form of a rock concert in New York’s Central Park could be subject to volume regulations under the First Amendment (O'Neill, “Time, Place and Manner Restrictions”). This decision, written by Justice Anthony Kennedy, led to the creation of a test to determine whether assembly and expression could be restricted. The test asks whether the regulation is “content neutral,” whether it is “narrowly tailored” to fit a specific governmental interest, and whether it still provides ample opportunity for the message to be communicated (O'Neill, “Time, Place and Manner Restrictions”). If a regulation passes all three prongs of this test, then it can legally restrict or control the time, place, or manner in which assemblies like protests are carried out. The Law Library of Congress writes that since Kennedy’s decision, “the Supreme Court has held that it is constitutionally permissible for the government to require that a permit for an assembly be obtained in advance” (“Right to Peaceful Assembly: United States - Law Library of Congress”). Kennedy’s ruling also allows the government to “make special regulations that impose additional requirements for assemblies that take place near major public events” (“Right to Peaceful Assembly: United States - Law Library of Congress”). This legal doctrine has significantly shaped the way in which state and federal governments treat freedom of association and the right to peaceable assembly. While the Supreme Court can hardly be considered a private actor, Justices like Kennedy rely on personal study and private experience to create policy that affects American freedom of association as a whole. Citizens within a political society have the right to free association as long as it is peaceable and does not infringe upon others’ rights or liberties. This principle lends itself to a number of complexities because its parameters for free association are so vague, but over the past few centuries the United States has worked to define when and how private actors can curtail others’ right to free association. The result is that the Supreme Court, and the justices that make it up, have set out precedents that test whether certain forms of association are constitutional and which ones can justifiably be restricted. The definition of public spaces as areas of free association and creation of buffer zones for private properties represent significant steps forward in this effort. References: Lynne Chandler Garcia, “Hague v. Committee for Industrial Organization,” Hague v. Committee for Industrial Organization, accessed June 16, 2020, https://mtsu.edu/first-amendment/article/619/hague-v-committee-for-industrial-organization. David L Hudson, “Public Forum Doctrine - The First Amendment Encyclopedia,” accessed June 19, 2020, https://mtsu.edu/first-amendment/article/824/public-forum-doctrine. “Madsen v. Women's Health Center, Inc. - The First ...,” accessed June 19, 2020, https://mtsu.edu/first-amendment/article/10/madsen-v-women-s-health-center-inc. Kevin Francis O'Neill, “Time, Place and Manner Restrictions,” Time, Place and Manner Restrictions, accessed June 17, 2020, https://www.mtsu.edu/first-amendment/article/1023/time-place-and-manner-restrictions. “Right to Peaceful Assembly: United States - Law Library of Congress,” accessed June 19, 2020, https://www.loc.gov/law/help/peaceful-assembly/us.php.
Freedom of Expression		Freedom of expression exists at the core of the United States of America and the freedoms it guarantees to its people. Beyond a core tenet in America, freedom of expression holds a defining place in democracies around the world, shaping their culture and development. Article 19 of the International Covenant on Civil and Political Rights, adopted by the United Nations in December 1966, explains how freedom of expression “shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice” (U.N. General Assembly 1966, art. 19). With such importance, infringement upon this freedom can be extremely contentious. In US history, this context has resulted in the development of the State Action Doctrine as delivered by the Supreme Court. According to the State Action Doctrine, “the US Constitution in general, and its individual rights in particular, apply only to state action, not to private action” ("State Action" 2017). In understanding the question of whether private actors curtail freedom of expression, the State Action Doctrine responds with a definite yes. This understanding has been developed through a series of court cases, creating a precedent that allows for private actors to breach free expression. In United States v. Cruikshank, the Supreme Court ruled “the 14th Amendment's Due Process and Equal Protection Clauses applied only to state action, and not to violations of civil rights by individual citizens.” (United States v. Cruikshank, 1875). This landmark decision took place following the Colfax Massacre wherein “300 white Democrats, many of them former Confederate soldiers,” were hoping “to dislodge an armed cadre of 150 freedmen and white Republicans who had barricaded themselves inside” in order to protect an election (Pusey 2021, 72). Due to the absence of civil rights protections in Louisiana, where the Colfax Massacre occurred, the state bore no responsibility and could not prosecute individuals for violating others' rights. This case is relevant to understanding how freedom of expression can be curtailed by private actors. It set a precedent that allowed private actors to infringe upon others' rights, such as voting, because of the state's lack of responsibility. While legal precedents focus on the ability to discriminate, freedom of expression remains relevant because the freedoms “of speech, of the press, of association, of assembly and petition,” that comprise expression can be subject to that discrimination (ACLU, 2002). Further legal contributions exist along with social media usage statistics that present high percentages of US adults using various platforms. A Pew Research report found that 83% of US adults reported they ever used Youtube, 68% used Facebook, and 47% used Instagram (Pew Research Center, 2024). The private actors that run social media companies are able to curtail freedom of expression aided by Section 230 of the 1996 Telecommunications Act. This provided “immunity to those that screened or removed offensive or indecent material that was posted on their sites by third parties” (First Amendment Encyclopedia, s.v. "Communications Decency Act and Section 230"). Originally created to “prevent minors from gaining access to sexually explicit materials on the internet,” the Telecommunications Act of 1996 has granted media platforms the ability to tailor violations of freedom of expression. Instagram, a social media platform used by just under 50% of Americans, explains their terms for content removal within their community guidelines (Pew Research Center, 2024) They “may remove entire posts if either the imagery or associated captions violate their guidelines,” some of those violations being nudity, promoting hate speech, and bullying amongst others (Instagram Help Center, n.d.). With laws and legal precedents to support infringement and equal opportunity and anti-discrimination policies protecting people’s freedoms, private actors are certainly able to curtail freedom of expression, but with limitations. References ACLU. 2002. “Freedom of Expression.” American Civil Liberties Union. March 1, 2002. https://www.aclu.org/documents/freedom-expression. "Communications Decency Act and Section 230." First Amendment Encyclopedia. Accessed June 24, 2024. https://firstamendment.mtsu.edu/article/communications-decency-act-and-section-230/#:~:text=To%20encourage%20internet%20service%20providers,their%20sites%20by%20third%20parties. Instagram Help Center. s.v. "Privacy Settings." Accessed June 24, 2024. https://help.instagram.com/477434105621119#. Pusey, Allen. "Colfax Massacre Convictions Tossed: March 27, 1876." ABA Journal 107, no. 1 (February-March 2021): 72. Gale Academic OneFile. Accessed June 20, 2024. https://link.gale.com/apps/doc/A653471522/AONE?u=anon~c9675132&sid=bookmark-AONE&xid=4c07453e. Pew Research Center. "Social Media Use in 2024." Pew Research Center. January 31, 2024. Accessed June 24, 2024. https://www.pewresearch.org/internet/wp-content/uploads/sites/9/2024/01/PI_2024.01.31_Social-Media-use_report.pdf. "State Action." Max Planck Encyclopedia of Comparative Constitutional Law. Last modified February 2017. https://oxcon.ouplaw.com/display/10.1093/law-mpeccol/law-mpeccol-e473#:~:text=The%20state%20action%20doctrine%20of,action%2C%20not%20to%20private%20action. U.N. General Assembly. 1966. International Covenant on Civil and Political Rights. Treaty Series, vol. 999, p. 171. https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx. United States v. Cruikshank. 92 U.S. 542 (1875).
Freedom of Religion		Private companies have often been found to institute policies that restrict employees’ rights to religious freedom. Such policies directly violate Title VII of the Civil Rights Act, a provision meant to bolster religious freedom by prohibiting employment discrimination on the basis of religion (EEOC). Such discriminatory policies were observed in EEOC v. Abercrombie & Fitch Stores. Furthermore, the case revealed Abercrombie’s “Look Policy”, which involved discriminatory hiring procedures towards Muslim individuals (Oyez). Affirmed by the Supreme Court, this policy was a direct violation of the Civil Rights Act, Justice Scalia upholding Title VII claiming, “An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions” (Justia Law). Demonstrated by the court’s decision, one’s entitlements to religious freedom in the workplace, as upheld by Title VII, are curtailed by discriminatory hiring practices such as the “Look Policy”. In addition to violating their Title VII entitlements, many individuals argue that their employers’ practices restrict their First Amendment rights to free religious exercise. For example, in Sherbert v. Verner, Adell Sherbert argued that her firing due to her refusal to work Saturdays, her Sabbath day, was a violation of the Free Exercise Clause of the First Amendment (Oyez). The Supreme Court concurred with Sherbert, emphasizing that the firing restricted Sherbert’s ability to freely practice her religion. Emphasized by the case, firing someone on the basis of their religion, in addition to likely being a violation of the Civil Rights Act, is a direct breach of the First Amendment. Thus, witnessed by instances such as those that precipitated Sherbert, First Amendment religious rights are often infringed upon by employment policies. REFERENCES: EEOC v. Abercrombie & Fitch Stores, https://www.oyez.org/cases/2014/14-86 EEOC v. Abercrombie & Fitch Stores, https://supreme.justia.com/cases/federal/us/575/14-86/ Sherbert v Verner, https://www.oyez.org/cases/1962/526
Privacy Rights		Privacy Torts Privacy violations under tort law was how Warren & Brandeis originally developed the right in 1890 (Citron, 2010, 1805) . These violations, usually unwanted intrusions or disclosures can result from negligent or intentional actions and result in civil lawsuits rather than questions of constitutional legality (Citron, 2010, 1806; Tort, n.d.). Violations are hard to define as they change with technology (the original call for privacy was in relation to the ‘instant photograph’), which creates more and more opportunities for violations (Citron, 2010, 1809; Warren & Brandeis, 1890, 195). However, the law changes slower than technology creating some disconnect in legal remedies for new technology (Citron, 2010, 1810) . Constitutional Privacy Constitutions only protect people from government actors and international covenants only affect the laws and regulations which governments put in place (Hudson, 2018; Dunn, 2009) . Even so, most allowances of government invasions of privacy in the United States have evolved because the government mimicked the actions of private actors, placing private conduct at the baseline of privacy expectations (Kamin, 2004, 101, 115). At a basic level, once information is willingly given to someone other than oneself, the courts have continuously ruled that there is no longer the expectation for privacy. This holds true with information that is given to both private companies and individuals (Kamin, 2004, 101). The Katz decision somewhat demonstrates this curtailment of privacy by creating the plain view doctrine. If something is in plain view, even in a private space, it is not private (Kamin, 2004, 104). This decision extrapolates on the theory that as long as someone else may reasonably have that information, it is an unprotected area under the Fourth Amendment (Kamin, 2004, 104). So, by letting someone into one’s home or publishing information online, one is inherently limiting their Fourth Amendment protections. As such, authorities can ask private companies to perform searches or subpoena these actors rather than those they are investigating, depending on the company’s privacy policies (Kamin, 2004, 102, 137). In United States v. Jacobsen ( 1984) privacy protections were tested when officials were able to open a package that FedEx had damaged and opened for insurance purposes (Kamin, 2004, 99, United States v. Jacobsen, 1984) . Upon its opening, FedEx employees suspected the package contained cocaine (Kamin, 2004, 99). Had federal officials gotten to it first, it would not have been able to be searched, even if it was damaged, but the information provided by FedEx from the private search was enough to imply the plain view doctrine thus permitting a warrantless search by the DEA (Kamin, 2004, 100; US v. Jacobsen, 1984) . The Supreme Court upheld the granting of the search and subsequent arrest warrant which was obtained because the DEA confirmed the contents were cocaine based on the ‘tip’ from private actors. The Court said that “[w]hether those invasions were accidental or deliberate, and whether they were reasonable or unreasonable, they did not violate the Fourth Amendment because of their private character” (US v. Jacobsen, 1984) . Kamin ( 2004) goes as far as to say that “[t]he fact that the private actor did something the government would not have been permitted to do simply did not covert the subsequent, otherwise reasonable, police conduct into a search that implicated the Fourth Amendment” (100-101). That is to say, after the package was opened due to the damage by a non-governmental party, privacy could no longer be expected, despite that it is reasonable to expect privacy during shipping (Kamin, 2004, 100). References: Citron, D.K. ( 2010, Dec. 1). Mainstreaming Privacy Torts. California Law Review 98(6). https://www.jstor.org/stable/25799956 Dunn, C. ( 2009, Apr. 28). Applying the Constitution to private actors (New York Law Journal). NYCLU ACLU of New York. https://www.nyclu.org/en/publications/column-applying-constitution-private-actors-new-york-law-journal Hudson, D.L. ( 2018, Oct. 20). In the age of social media, expand the reach of the First Amendment. Human Rights Magazine 43(4), n.p. https://www.americanbar.org/groups/crsj/publications/human_rights_magazine_home/the-ongoing-challenge-to-define-free-speech/in-the-age-of-socia-media-first-amendment/ Kamin, S. ( 2004, Dec. 1). The private is public: The relevance of private actors in defining the Fourth Amendment. Boston College Law Review 46(1), 83-147. https://lawdigitalcommons.bc.edu/cgi/viewcontent.cgi?article= 2293& context=bclr Tort. (n.d.). Cornell Law School Legal Information Institute. Retrieved Oct. 15, 2021, from https://www.law.cornell.edu/wex/tort United States v. Jacobsen, 466 US 109 ( 1984) . https://www.law.cornell.edu/supremecourt/text/466/109 Warren, S. & Brandeis, L. ( 1890, Dec. 15). The right to privacy. Harvard Law Review 4(5), 193-220. http://links.jstor.org/sici?sici=0017-811X%281890 1215% 294%3A5%3C193%3ATRTP%3E2.0.CO%3B2-C