An often misunderstood part of America’s guarantee of “free speech” is that the Constitution (the source of free speech rights), restricts only the government’s ability to regulate speech. Private citizens are not prohibited from restricting speech. For example, a restaurant owner may deny service to a customer who is wearing a political shirt which the owner finds offensive. But, the city in which the restaurant is located cannot pass an ordinance which requires restaurants to deny service to customers who wear a shirt which supports a specific political party.
Thus, for an individual to have a lawsuit under the First Amendment for a violation of free speech, the individual must first be able to prove “state action,” i.e. that the government, and not a private individual, caused the deprivation of rights.
Usually, this distinction is not difficult. Typically, its apparent whether the government is restricting speech or whether a private individual is restricting speech. On March 18, 2024, however, the Supreme Court issued a decision in a case where the distinction was not easy to determine. Today’s Long Island employment law blog discusses the decision issued in Lindke v. Freed.