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State action doctrine

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State action doctrine is the American legal concept that the protections of the Constitution — such as the Fourteenth and First Amendments — only apply with any real strength to the coercive power of the state against the individual, rather than the coercive power of the individual against the individual.

Thus, private discrimination is not actionable under the Fourteenth Amendment: in the absence of federal and state statutory law to the contrary, private restaurants in America could serve only African American clientèle, or only white clientèle, and not run afoul of any Constitutional provision whatsoever. This limitation — a holdover from American law during the Reconstruction following the Civil War — has survived for nearly 150 years, and shows no sign of being weakened significantly[1] (the Civil Rights Act of 1964 got around this by prohibiting racial discrimination under the Commerce Clause of the Constitution).

Similarly, the First Amendment does not generally protect speech from being curtailed by a private institution of which the speaker is a member. By way of example, an American citizen could not be criminally prosecuted, or statutorily barred, from making non-threatening racist statements. However, the same citizen could legally be terminated from his profession for the same. When they are employed by public institutions, however, the protections generally still apply.

[edit] Footnotes

  1. The Civil Rights Cases, 109 U.S. 3, for weakening of the state action doctrine, see e.g. Shelley v. Kraemer, 334 U.S. 1 (holding that judicial enforcement of a racially restrictive covenant qualifies as significant state action, which must be struck down therein).
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