What is a State Action?

M. Lupica
M. Lupica
Woman with hand on her hip
Woman with hand on her hip

A state action is any affirmative act by a government or its members. Whether or not something amounts to a state action is legally relevant in constitutional law when a private person wants to make a constitutional claim that his or her civil rights have been violated. Typically, a person’s rights that are vested in the constitution of the nation in which the person lives are only enforceable against state action. Aside from the obvious direct acts by the government, other situations may be construed as involving state action. Such an implication may also arise if a private party acts in a way that is traditionally exclusively reserved for the government, as well as if the government directly facilitates the actions of a private party.

Direct acts by the government are indisputably state actions. This direct act may be anything from an arrest to a law passed by the nation’s lawmakers. For example, there could be a country whose constitution protects a citizen’s right to free speech. In the event the nation’s lawmakers pass a law that prohibits speaking out against the government, the law would likely be struck down as an unconstitutional state action.

Some situations may imply state action where it is not entirely obvious. If private parties conduct activities that are traditionally exclusively governmental in nature, then those activities may be treated as if they were conducted by the state. Consider a hypothetical small mining community of less than 100 people in a rural area that is largely cut off from the rest of the state. If, as a result, the community develops its own rules and methods of enforcement, any enforcement of those rules will likely be treated as state action.

Another way an act that is not directly made by the government could be considered a state action is if the government is significantly involved with the conducting of a non-governmental action. The state involvement in the activities must be significant, which means that the government must directly facilitate the activity. For instance, many courts have held that allowing discriminatory restrictive covenants to be enforced by a homeowners’ association — i.e., the group of owners in a neighborhood contractually agree not to sell any of their homes to a certain race — can be construed as state action. The rationale behind this classification is that by holding such agreements to be valid, the state is providing legal avenues to enforce discrimination.

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Discussion Comments


@Terrificli -- That is sad but it is not that surprising. Heck, the government has gotten so large that it is hard to tell where state action ends and private action begins.

Perfect example. It is illegal to smoke in a restaurant in a lot of states (mine included) regardless of whether the business owner has a problem with smokers or not.

At what point did such decisions over what legal actions can or cannot be performed on private property become a concern of the state? In such an environment, is it any wonder people get confused about what state action is, what it is not and when the Bill of Rights applies?


What is truly sad is how often people get state action and private action confused. I have heard people argue that their First Amendment rights were being violated because they couldn't by a movie they wanted at the local big box store.

The problem with that, of course, is that rights protect citizens from the state. A store can choose to carry or not carry merchandise (well, merchandise that is legal at least) without considering the Constitutional ramifications of those decisions.

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