Knowledge And Decisions

The Marsh decision set a precedent which was not only followed but extended. If a private development was functionally similar to a municipality, a shopping center was “the functional equivalent” of part of a municipality.³¹ Therefore pickets could not be considered as trespassers in the shopping center.³² Again, the issue was posed in terms of the free speech rights of the many against the property rights of the few.³³ The right of the public to be undisturbed, and the intermediary role of the property owners as communicators and defenders of that right, out of financial self-interest, were not allowed to disturb this tableau. In the case of Food Employees Union v. Logan Valley Plaza (1968), the few were described in terms of the much larger entities of which they were a part (“workers”) and in terms of other large entities, some few of whom might also wish to do similar things (“consumers,” “minority groups”), while the contrary interests of the many were described in impersonal terms as property rights or summarized through a handful of intermediaries (“business enterprises”).³⁴ As in the earlier decision, the dissenting opinions accepted much of the same framework and complained primarily of the extent to which the functional analogy to “state action” had been stretched.

In a subsequent case, Lloyd Corporation v. Tanner (1972), the Supreme Court pulled back, in a five-to-four decision which emphasized that the leaflets were being distributed in a shopping plaza that was not a “functional equivalent” because it was not in a “large private enclave” like Logan Valley Plaza, where “no other reasonable opportunity” to convey a message existed.³⁵ In short, once more political freedom from governmental prohibitions was confused with economic inexpensiveness in message sending. The dissenting opinion also leaned heavily on the expensiveness of message sending, but simply estimated the costs differently: “If speech is to reach these people, it must reach them in Logan Center.”³⁶ There is, presumably, a right to an audience, regardless of the audience’s wishes.

Later Supreme Court rejections of the application of “state action” constraints were similarly based on how far “this process of analogy might be spun out to reach... a host of functions commonly regarded as nongovernmental though paralleling fields of government activity.”³⁷ But the basic belief that such functional parallelism was the determining factor was not rejected. Again, the majority differed from the dissenters only in how far they were prepared to carry the analogy, not on its validity in principle.

In a still later case of a privately owned public utility that discontinued service without “due process,” the failure to invoke “state action” constraints was based on an assessment of insufficient parallelism in function, whereas from the point of view of state power, the consumer had no other choice of electric company precisely because the state forbade competition when it licensed this producer.³⁸ Even if one accepts the “natural monopoly” theory of public utilities,³⁹ it is not economically inevitable that a particular state-selected firm be that monopoly, regardless of how it treats customers. Natural monopolies exist in some fields because of cost advantages, but cost advantages are never absolute — and sufficiently bad treatment of customers creates opportunities for competitors — except where the state prevents this economic feedback mechanism to act as “checks and balances.” To lose the economic checks and balances without any offsetting political checks and balances is to combine the worst features of both institutional processes.

Neither the dissents nor the pullbacks of the whole court in the “state action” area were based on recognition of a different constitutional principle, nor on the recognition of the relative advantages of other decision-making processes for balancing the interests at issue.

RACE

The Constitution, as originally adopted, contained no explicit reference to slavery or to the enslaved race, though “free persons” and “other persons” were distinguished for voting purposes. Slavery entered the Constitution openly for the first time in 1865 when the Thirteenth Amendment banned slavery, and in 1870 when the Fifteenth Amendment asserted the right to vote without regard to “race, color or previous condition of servitude.” Sandwiched between them is the momentous Fourteenth Amendment which decrees “equal protection of the laws” to “all persons.” It has been estimated that the Fourteenth Amendment is the largest source of the Supreme Court’s work. Its ramifications reach beyond the area of race, though it is one of the three amendments transforming race relations in the United States.