Is a private nonprofit volunteer fire department that contracts with a county a 'state actor' that must respect free-speech rights?

Plain-English summary

Constitutional free-speech protections (the First Amendment and Article I, sections 4 and 5 of the Florida Constitution) restrain government, not private parties. So before someone can sue over a speech restriction, they have to show the entity that did it was a "state actor." Madison County contracts with private, nonprofit volunteer firefighter organizations to provide fire protection, funded through non-ad valorem special assessments. At a fundraiser where candidates were invited to speak, one organization at first refused to let a resident collect signatures for a local-option liquor referendum (later it allowed the signatures). The county asked whether the nonprofit was a state actor whose refusal could be challenged as a constitutional violation.

Assistant Attorney General Lagran Saunders explained that this is a mixed question of law and fact the office cannot resolve, and that whether sponsoring a political rally is "state action" is likewise a factual determination outside the office's authority. The comments then walked through the federal framework. There is no single test; courts sift the facts. The U.S. Supreme Court has found no state action where a contractor's relationship with the state is just a funding relationship (Rendell-Baker v. Kohn), but has found it where conduct is "fairly attributable to the State" (Lugar), where the government creates and controls a corporation (Lebron), or where there is "pervasive entwinement" of government in a nominally private body (Brentwood Academy). The Eleventh Circuit's three-part test (state compulsion, public function, or nexus/joint action) from Rayburn v. Hogue applies here.

Applying that frame, the comments noted that the nonprofit operates largely independent of the county (the county does not control its internal operations, officers, or fundraising), but there are real ties: the county owns some equipment and vehicles, controls the funds it provides, and supplies insurance. Those ties create a valid question of whether the organization is a state actor when it holds fundraisers and invites candidates. Ultimately, the office said, that question is for a court of competent jurisdiction.

Currency note

This opinion was issued in 2008. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule mentioned here.

Common questions

Q: Why does "state actor" status matter for a free-speech claim?
A: Because the First Amendment and Article I, sections 4 and 5 protect speech only against government action. The comments stressed that a plaintiff must first show the defendant is a state actor; private individuals are not bound by these guarantees, so without state action there is no constitutional claim.

Q: Did the AG decide the fire nonprofit was a state actor?
A: No. The office said this was a mixed question of law and fact it could not resolve, and that only a court could decide it. The comments were a general discussion of the governing tests, not a ruling on Madison County's facts.

Q: What tests do courts use?
A: The comments described the Eleventh Circuit's three conditions: state compulsion (the state coerced or significantly encouraged the conduct), public function (the private party performed a function traditionally the exclusive prerogative of the state), and nexus/joint action (the state so insinuated itself into interdependence that it was a joint participant). The U.S. Supreme Court's "pervasive entwinement" approach from Brentwood Academy is also relevant.

Q: Which facts pointed toward state action here?
A: The comments flagged the county's ownership of some equipment and vehicles used by the organizations, its control over the funds it provided, and its provision of insurance, as ties that could entwine the nonprofit with the county. Facts cutting the other way included the county's lack of control over the organizations' internal operations, officers, and fundraising decisions.

Background and statutory framework

The state-action doctrine asks whether a private party's challenged conduct can fairly be attributed to the government. The U.S. Supreme Court has emphasized that "[o]nly by sifting facts and weighing circumstances" can the state's involvement be assessed (Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961)). It found no state action in Rendell-Baker v. Kohn, 457 U.S. 830 (1982), where a publicly funded, regulated private school's employment decisions were not directed by the state, but recognized attribution where conduct is "fairly attributable to the State" (Lugar v. Edmondson Oil Co., 457 U.S. 922 (1982)) and where the government creates and controls a corporation (Lebron v. Natl. R.R. Passenger Corp., 513 U.S. 374 (1995)). Brentwood Academy v. Tennessee Secondary School Athletic Association, 531 U.S. 288 (2001), treated a nominally private athletic association as a state actor because of pervasive entwinement of state officials. The Eleventh Circuit distilled the inquiry into the state-compulsion, public-function, and nexus/joint-action tests (Rayburn v. Hogue, 241 F.3d 1341 (11th Cir. 2001), citing NBC, Inc. v. Communications Workers of America, 860 F.2d 1022 (11th Cir. 1988)). The underlying dispute arose from a local-option liquor referendum drive under section 567.01(1), Florida Statutes.

Citations

Constitution and statutes

• First Amendment, U.S. Const. (free speech; applied to states via the Fourteenth Amendment)
• Art. I, s. 4, Fla. Const. (freedom of speech and press)
• Art. I, s. 5, Fla. Const. (right to assemble)
• s. 567.01(1), Fla. Stat. (county local-option liquor referendum)

Cases

• Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961)
• Rendell-Baker v. Kohn, 457 U.S. 830 (1982)
• Lugar v. Edmondson Oil Co., 457 U.S. 922 (1982)
• Lebron v. Natl. R.R. Passenger Corp., 513 U.S. 374 (1995)
• Brentwood Academy v. Tennessee Secondary School Athletic Association, 531 U.S. 288 (2001)
• Rayburn v. Hogue, 241 F.3d 1341 (11th Cir. 2001)
• NBC, Inc. v. Communications Workers of America, 860 F.2d 1022 (11th Cir. 1988)

Source

• Landing page: https://www.myfloridalegal.com/ag-opinions/nonprofit-corporation-as-quotstate-actorquot
• Original PDF: https://www.myfloridalegal.com/print/pdf/node/8240

Original opinion text

Mr. George T. Reeves

Attorney for Madison County

Post Office Drawer 652

Madison, Florida 32341

Dear Mr. Reeves:

On behalf of the Board of County Commissioners of Madison County, you ask whether a private entity which provides fire protection services for the county is a "state actor" such that Federal First Amendment[1] protections and those in Article I, sections 4 and 5 of the Florida Constitution[2] are implicated. If so, you further inquire whether such an entity operates "under color of state law" when holding political rallies unconnected to its fire protection duties such that violations of the First Amendment and Article I, sections 4 and 5 of the Florida Constitution would be actionable by a private party.

You state that Madison County provides fire protection services by contracting with private, non-profit corporations acting as volunteer firefighter organizations. The county funds such services through a municipal services benefits unit by assessment and collection of non-ad valorem special assessments. At times, the private organizations hold fund-raising events such as barbeques, fish fries, cake sales, and the like. During election years, candidates for office are invited to attend these events to speak. The county’s role in the activities of the organizations is: dispatching the services; overseeing the expenditure of funds for specific purposes; ownership of some equipment and vehicles used by the organizations; and providing insurance for the vehicles owned by the corporations through the county’s general automobile policy.

You indicate that the non-profit corporations are created by persons or entities other than the county and that the county does not exercise control over the internal operations of the corporations or influence the selection of the corporation’s officers, members, or employees. According to your letter, the corporation’s employees are not county employees and the fire stations are located on privately owned property. Moreover, you state that the county exercises no control over corporate funds other than those provided by the county, the corporations provide no functions other than fire protection to the county, and the county does not require or encourage the corporations to hold fund-raising events.

In this instance, a local citizen has been collecting signatures seeking a referendum on local option pursuant to section 567.01(1), Florida Statutes.[3] At a recent fund-raising event by one of the organizations where public officials were asked to speak, the organization refused to allow the local citizen to collect signatures or promote the call for a referendum. This office has subsequently been advised that the volunteer fire department has allowed the local citizen to collect signatures at its political rally. While you state that this matter is not the subject of litigation, the local citizen has retained counsel and is asserting that such action by the organization is a violation of the First Amendment of the United States Constitution and of sections 4 and 5, Article I of the Florida Constitution.

Initially, I must state that the determination of whether a private, non-profit organization which provides fire protection services on behalf of a county pursuant to a contract is a "state actor" for purposes of determining whether the organization’s actions are actionable as a violation of federal and state constitutional guarantees of free speech is a mixed question of law and fact that may not be resolved by this office. Likewise, whether such an organization’s sponsorship of a political rally constitutes "state action" is a factual determination outside the authority of this office. To be of assistance, however, a general discussion of the issues is offered.

To prevail on a First Amendment claim, it is well established that the plaintiff must first make a showing that the defendant is a state actor. Freedom of speech is protected only against abridgement by state action and not against encroachment by private individuals.[4] There is no single test that appears to be applicable to every factual situation.[5] Rather, the United States Supreme Court appears to have evaluated the underlying factual situation and the type of discrimination asserted to apply a range of tests in determining whether the perpetrator is a state actor and its actions rise to the level of government action.

For instance, in Rendell-Baker v. Kohn,[6] the Court considered whether a private school whose income was derived primarily from public sources and which was regulated by public authorities acted under color of state law when it discharged employees. The Court found no state action where the discharge of employees was not influenced or directed by any state regulation and it was determined that the school's fiscal relationship with the state was no different from that of contractors performing services for the government, there being no "symbiotic relationship" between the school and the state.

In a later case, the Court found that a private party may be considered a government actor when the party’s alleged infringement of constitutional rights is "fairly attributable to the State."[7] Also, the Court has concluded that where the government has created a corporation by special law, for the furtherance of governmental objectives, and has retained the authority to appoint a majority of the directors of that corporation, the corporation is part of the government for purposes of the First Amendment.[8]

In what may be the most recent United States Supreme Court case addressing this issue, the Court in Brentwood Academy v. Tennessee Secondary School Athletic Association,[9] considered whether a private, non-profit corporation secondary school athletic association was a state actor subject to suit under federal civil rights law. A private high school sued the association to prevent the enforcement of an association rule that prohibited the use of undue influence in the recruitment of student athletes, arguing that the prohibition violated the private school’s right to free speech. The association argued that it could not be sued for a constitutional violation, as it was a private organization and not a government actor.

The Supreme Court found that the association was a government actor because of the pervasive entwinement of state school officials in the structure of the association with the state.[10] It was observed that "challenged activity may be state action when it results from the State’s exercise of 'coercive power,' [citation omitted], when the State provides 'significant encouragement, either overt or covert,' [citation omitted] or when a private actor operates as a 'willful participant in joint activity with the State or its agents,' [citation omitted]." The Court further noted that a "nominally private entity" has been treated as a state actor "when it is controlled by an 'agency of the State,' [citation omitted], when it has been delegated a public function by the State, [citation omitted], when it is 'entwined with governmental policies' or when government is 'entwined in [its] management or control,' [citation omitted]."[11]

The Court stressed that specific facts that address any of the above criteria are significant, "but no one criterion must necessarily be applied. When, therefore, the relevant facts show pervasive entwinement to the point of largely overlapping identity, the implication of state action in not affected by pointing out that the facts might not loom large under a different test."[12]

The dissent in Brentwood Academy offers several instances where there is no state action: when a private entity does not perform a function "traditionally exclusively reserved to the State;" where the entity is not created or controlled by the government for the purpose of fulfilling a government objective; when the state does not exercise coercive power or provide significant encouragement to the entity; or when there is no "symbiotic relationship" between the state and the entity.[13]

The Eleventh Circuit Court of Appeals has set forth the test to determine when private parties will be considered state actors, requiring a court to conclude that one of the following three conditions has been met:

"(1) the state has coerced or at least significantly encouraged the action alleged to violate the Constitution (state compulsion test);

(2) the private parties performed a public function that was traditionally the exclusive prerogative of the state (public function test); or

(3) the state had so far insinuated itself into a position of interdependence with the private parties that it was a joint participant in the enterprise (nexus/joint action test)."[14]

This test, therefore, may appropriately be applied to the situation you have set forth to determine whether the relationship between the county and the non-profit corporation providing fire protection services to the county would lead to the conclusion that the private organization is a state actor when it conducts its fundraising activities and invites political candidates to attend and speak. As noted above, certain aspects of the private non-profit corporation providing fire protection services operate independently from the control of the county. There are several ties with the county, such as the ownership of the equipment, control of funds provided by the county, and insurance coverage which may sufficiently entwine the corporation with the county, creating a valid question of whether the corporation is a "state actor" for purposes of a suit for a constitutional violation of free speech or right of assembly. Ultimately, however, it is a question that should be resolved by a court of competent jurisdiction.

Sincerely,

Lagran Saunders

Assistant Attorney General

ALS/tsh

[1] Article I, Const. of the United States, states that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances." Article XIV of the Constitution of the United States, makes Article I applicable to the states.

[2] Section 4, Art. I, Fla. Const., protects the freedom of speech and press; s. 5, Art. I, guarantees the right to assemble.

[3] Section 567.01(1), Fla. Stat., requires the board of county commissioners to order an election to decide whether the sale of intoxicating liquors, wines, or beer shall be prohibited in the county upon presentation at a regular or special meeting of a written application signed by one-fourth of the registered voters of the county.

[4] See 16B C.J.S. Constitutional Law ss. 789-791.

[5] See Burton v. Wilmington Parking Authority, 365 U.S. 715, 722 (1961) ("[o]nly by sifting facts and weighing circumstances can the nonobvious involvement of the State in private conduct be attributed its true significance.").

[6] 457 U.S. 830 (1982).

[7] See Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982).

[8] See Lebron v. Natl. R.R. Passenger Corp., 513 U.S. 374, 400 (1995).

[9] 531 U.S. 288 (2001).

[10] 531 at 291.

[11] 531 at 296.

[12] 531 at 303.

[13] 531 at 310-311.

[14] Rayburn v. Hogue, 241 F.3d 1341 (Ct. of App. 11th Cir., 2001), citing NBC, Inc. v. Communications Workers of America, 860 F.2d 1022, 1026-27 (11th Cir. 1988).