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Author: Lauren N. Smith
Date: Mar. 2021
From: Duke Law Journal(Vol. 70, Issue 6)
Publisher: Duke University, School of Law
Document Type: Article
Length: 15,415 words
Lexile Measure: 2010L

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Constitutional law often splits society into two realms: public and private. A person's constitutional rights and obligations depend on her classification into one of these realms. Almost all constitutional rights are only protected against encroachment by the state, and thus whether an action constitutes private or state action is incredibly significant. However, the body of law that governs this determination--the state action doctrine--is notoriously muddled.

The longstanding assumption is that political candidates and their campaigns are private actors, though the Court has on occasion, such as in the "white primary" cases, held that action by political parties constitutes state action. However, in recent years, the focus of electioneering has shifted away from political parties, and the democratic process has become far more candidate centric. At the same time, actions that might violate the Constitution if they were carried out by a state actor, such as the removal of protestors from campaign rallies and the rescission of press credentials for campaign events, have become widely publicized. In light of these developments, this Note argues that it is time to consider whether a candidate's actions should now be considered state action for purposes of constitutional tort claims. By combining elements from the Supreme Court's many formulations of the state action doctrine and invoking the logic behind the cases in which the Court found state action by political parties, this Note proposes a framework for assessing whether a candidate and her campaign's conduct on the campaign trail should be considered state action.


"[T]he hardest thing about any political campaign is how to win without proving that you are unworthy of winning."

Adlai Stevenson (1)

On March 1, 2016, from behind a podium with the American and Kentucky flags hanging in the background, then-presidential candidate Donald Trump repeatedly shouted, "Get 'em outta here!" (2) After observing signs held by protestors Kashiya Nwanguma, Molly Shah, and Henry Brousseau that depicted the candidate's face on a pig's body, Trump ordered that the three be removed from his campaign rally in Louisville, Kentucky. (3) Members of the audience proceeded to assault the protestors, shoving and punching them until they exited the rally. (4)

Though not always ending in violence, the practice of removing protestors from campaign events is not uncommon. Five months later, at a Trump rally in Portland, Maine, a group of protestors stood silently, pocket copies of the U.S. Constitution held above their heads. (5) Trump again paused his speech as campaign staffers escorted the protestors out of the building. (6) This practice is also not unique to the Trump campaign. On January 2, 2016, in Amherst, Massachusetts, a man in a Trump shirt stood and shouted, "Shame on you, Bernie," at the campaign rally of presidential candidate Bernie Sanders. (7) Sanders supporters proceeded to "boo" the protestor as he was removed by campaign staff in response to Sanders's call, "Here is a Trump supporter." (8)

The silencing of protestors ought to call to mind the First Amendment, which protects the right to...

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Gale Document Number: GALE|A666103932