There are endless misconceptions about when the Constitution and the Bill of Rights apply. Often you hear people claim their Constitutional rights were violated, when in fact, there are no Constitutional rights at issue. For example, when someone is banned from Twitter or Facebook, they might complain that their “free speech” rights or “1st Amendment rights” are being violated.
However, because Twitter and Facebook are privately owned companies, and are not government agencies or entities, the Constitution and the First Amendment do not apply because unlike the government, which cannot legally ban speech it doesn’t like or agree with (with some exceptions), a private social media company can legally determine what can and cannot be said on their platform. This simple concept is known in legal terms as the State Action Doctrine.
Specifically, the State Action Doctrine is the legal doctrine that refers to the requirement that for an individual or entity to be able to sue over a Constitutional law or right being violated, that person or entity must demonstrate that the government (local, state, or federal), was responsible for the violation of the law or right, rather than a private actor, such as Twitter or Facebook.
Similarly, this also applies in employment discrimination situations. While there are multiple federal, state, and local laws that prohibit discrimination by an employer, based on one’s race, sex, gender, religion, disability, and/or sexual orientation, among other things, those types of discrimination are prohibited because the government has explicitly passed laws which prohibit them and allow those who have been subjected to discrimination to bring legal action against their employer. However, even in those situations, unless someone’s employer is the government itself, or an agency of the government, no Constitutional rights have been implicated.
For example, let’s say you are employed by a privately owned retail clothing store and during one of your shifts, a customer makes a false complaint against you. As a result of the customer complaint, the company you work for terminates your employment and does so without having a meeting with you or allowing you to present evidence showing the complaint is false. You might think that your Constitutional rights have been violated, specifically, that you haven’t been given “due process” to prove to your employer that you did not commit the wrong.
However, no Constitutional violation or violation of your rights has occurred. This is because your employer is a privately owned business, and therefore unless you have an employment contract that specifically states you are entitled to some of kind “due process” your employer can terminate you (an “at-will” employee) for any reason, at any time, without the need for any hearing or process, so long as you are not being terminated for an unlawful reason, such as based on your race, sex, gender, religion, disability, and/or sexual orientation.
Likewise, because a privately owned retail clothing store is not the government and therefore, no action is being taken against you by the “state” a.k.a the government, your Constitutional rights have not been violated
Of course, if your employer is the government, the situation may be different and certainly, even if your employer is not the government, you may still be able to take legal action if the discrimination/termination was based on race, sex, gender, religion, disability, and/or sexual orientation.
However, if the termination was solely based on the customer complaint, you would not be able to argue your Constitutional rights were violated because you were not granted the opportunity to present evidence to your company showing the customer complaint was false.
On the other hand, let’s say you walk out of your apartment building and see a friend, you and your friend shake hands, but nothing illegal occurs. Nonetheless, you are approached by three police officers who immediately arrest you, hold you in custody for twenty-four hours, and charge you with selling drugs.
You of course tell the police you were not selling drugs and no drugs are found on your person or in your things when you are searched. In this situation, you are entitled to “due process,” specifically, you are entitled to (and must) show up in criminal court and you are given the right to contest the allegations made against you by the police. Further, if your criminal case is dismissed, in many cases you will also have the right to sue the police for violating your Constitutional rights.
This is because police officers are “state actors” due to the fact they work for the government. As such, unlike the private clothing store, you are entitled to “due process” and the chance to present evidence in your defense. Further, if your case is dismissed, you may have grounds to bring a civil suit based on the idea your civil and Constitutional rights were violated by the police a.k.a. the government.
In any event, state action can sometimes be a difficult concept and it can be hard to wrap your head around whether your Constitutional rights have been violated, whether some other anti-discrimination law has been violated, or whether you might have a case at all.
But all is not lost, our lawyers at Cohen & Fitch LLP have years of experience dealing with both employment discrimination cases and police misconduct cases, can provide you a free consult, and can help determine whether you might have grounds to bring an action against your employer, the police, or some other entity. If you believe your rights have been violated, do not hesitate to reach out to us at 212-374-9115 for a free consultation.
