82. Article 41 of the Convention provides:
If the Court fi nds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party con- cerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.
83. The applicant claimed [against the German government] 50,000 euros (EUR) for non-pecuniary damage on the ground that the German courts’
decisions prevented her from leading a normal life with her children without being hounded by the media. She also claimed EUR 142,851.31 in reimbursement of her costs and expenses for the many sets of proceedings she had had to bring in the German courts.
84. The Government contested the amounts claimed. . . .
85. The Court considers that the question of the application of Article 41 is not ready for decision. Accordingly, it shall be reserved and the subsequent procedure fi xed having regard to any agreement which might be reached between the Government and the applicant. . . .
[Two separate concurring opinions are omitted.]
Notes and Questions
1. In the von Hannover case, who performed the acts that the Strasbourg Court found had infringed on the Applicant’s interests protected by Article 8 of the Convention? Was it the paparazzi? The publishers? Did the Court, then, give horizontal effect to Article 8? Is horizontal application of Article 8 what the language of the Article most naturally suggests?
If your answer is that the Strasbourg Court’s application of Article 8 in von Hannover was strictly vertical, then precisely which state offi cials undertook precisely what acts that the Court found to have contravened Article 8?
On the theory you have just offered, does a “state action” rule ever have any real bite or make any real difference? Princess Caroline framed her complaint at Strasbourg as one against the German state (including its courts) for failing to enact (or for failing to identify and enforce) state laws providing effective relief against private acts infringing on Convention-protected privacy interests. What is to stop losing parties in U.S. civil disputes from using that same form to frame claims under the U.S. Constitution against some state, whenever they choose to do so?
Take Moose Lodge, for example. In the actual case, Irvis sued the Lodge in federal court for acting in violation of his rights under Fourteenth Amendment’s equal protection clause, and lost—or so he was told—because the Lodge is not a state party against whom those rights run. But imagine, for a moment, that Irvis tries instead to follow the lead of Princess Caroline, and so sues Pennsylvania for failing to institute and enforce laws protecting him against race-based refusals of service at the Lodge—in violation, he says, of his rights to such laws under the equal protection clause.
Is the problem that Pennsylvania cannot be sued without its consent under U.S. constitutional rules on state sovereign immunity? (See generally R. Fallon et al., Hart and Wechsler’s the Federal Courts and the Federal System 973–1066 (5th ed. 2006). (By comparison, Germany made itself liable to suit under the European Convention by signing it.)) No, because the same effect is easily achieved by a different route: Let Irvis sue the Lodge in a Pennsylvania state court for an alleged state law tort of refusing him service on the basis of race. Let the trial court grant the Lodge’s predictable motion to dismiss for failure to state
The State Action Doctrine / 235 a valid legal claim, because (the court rules) the law of Pennsylvania imposes on the Lodge no duty to serve whomever it chooses not to serve. Let Irvis take the case on appeal to the Supreme Court of Pennsylvania and let that Court affi rm the ruling below. Let Irvis now petition for review by the U.S. Supreme Court, claiming that Pennsylvania, by having the laws its courts say it has, is acting in violation of his equal protection rights.
Can the U.S. Court now brush him off on the ground of “no state action?” If
“no” (but see Flagg Brothers), then the Court, in order to decide the merits of Irvis’s petition, will have to face squarely a question about the Constitution’s substan- tive meanings: Does the equal protection clause, or does it not, impose a positive duty on states to have and enforce laws protecting against race-based refusals of service in establishments resembling the Lodge?
Of course, it is easy to imagine the Supreme Court answering “no” to that question, thus still leaving the Moose Lodge plaintiffs without a winning constitu- tional claim. But note that von Hannover is in this respect no different. The balance of privacy and free-speech concerns was obviously debatable in that case, and we can easily imagine the Strasbourg Court agreeing with the balance struck in Germany. Had it done so, it would have denied the Applicant’s claim—not for the scrutiny-blocking reason of absence of state action, but for the fully substantive reason that Germany had struck a fair balance between free speech and privacy and thus complied in full with its obligations under the European Convention.
Does it matter at all in such cases whether plaintiffs suffer dismissal of their claims of higher-law violation for lack of substantive merit, or rather for the more technical-looking reason of “no state action”?
2. The state action rule plainly matters in the practical workings of U.S. constitu- tional law. With the von Hannover example before us, how may we explain this fact? Does the key perhaps lie in the Supreme Court’s holding in DeShaney v.
Winnebago County Department of Social Services, 489 U.S. 189 (1989)—to the effect that our Bill of Rights is strictly a negative “limitation on the State’s power to act,” and not at all a commitment to positive, protective action by the state? Is the crucial line really the one between state action and state inaction, not the one between state action and nonstate action? Consider the Strasbourg Court’s remark in von Hannover that “the applicant did not complain of an action by the State, but rather of the lack of adequate State protection of her private life and her image.”
Consider also that the Court went on, even so, to decide the merits of Applicant’s claim under Convention Article 8 because “there may be positive obligations [on state parties] inherent in an effective respect for private or family life.”
Article I of the European Convention states explicitly that “the High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defi ned in . . . this Convention.” The Strasbourg Court made no mention of Article 1 in its von Hannover judgment, but does the article contain important textual support for the Court’s fi nding of a violation of the Convention in that case?
Compare the Strasbourg Court’s 2001 Case of Z, (2001) 10 BHRC 384. Z’s case resembles DeShaney very closely on the facts. The Strasbourg decision imposed liability on the United Kingdom for harms suffered by young children whom British social service agencies had culpably failed to remove from the custody of evidently violence-prone parents. The Court applied Article 3 of the European Convention, providing that “no one shall be subjected to . . . inhuman or degrad- ing treatment.” It did not, however, base liability solely on Article 3. Rather, the
judgment relied on Articles 1 and 3 in combination: “The obligation on High Contracting Parties under Article 1 . . . to secure to everyone . . . the rights and freedoms defi ned in the Convention,” the Court wrote, “taken in conjunction with Article 3, requires States to take measures designed to ensure that individu- als . . . are not subjected to torture or inhuman or degrading treatment, including such ill-treatment administered by private individuals.”
Compare South Africa’s current Constitution. It provides, in § 7, not only that the state must “respect . . . the rights in the Bill of Rights,” but also that it must
“protect, promote, and fulfi ll” these rights. The Constitutional Court of South Africa relied in part on § 7 in the widely known case of Carmichele v. Minister of Public Safety and Security, (2001) 10 BCLR 995 (CC), 2001 SACLR LEXIS 64.
State police offi cials had declined to oppose a bail application by an obviously deranged and dangerous detainee, who assaulted and raped the plaintiff shortly after being released on bail. The lower courts rejected her claim in tort for negli- gence by the offi cials. Section 12(1) of South Africa’s Constitution grants to every- one the right “to freedom and security of the person,” and it specifi cally includes a right “(c) to be free from all forms of violence from either public or private sources.” The Constitutional Court held that this section, bolstered both by § 7 and § 39(2) of South Africa’s Constitution, discussed in Note 5 below, required the country’s common law judiciary to “develop” the country’s common law of tort so that offi cials performing as the Carmichele defendants did will be suable for harms suffered as a result of their negligence. In subsequent proceedings, the lower courts complied and the offi cials were held liable. In South Africa, Carmichele is widely regarded as a leading instance of what is called (by some jurists—usage of this term is contested) “indirect horizontal” application of the Bill of Rights. In your view, did the Constitutional Court apply Constitution
§ 12(1) horizontally or vertically in Carmichele?
Whether or not we class any or all of these cases as instances of horizontal application of constitutional guarantees, the holdings in von Hannover, Z’s Case, and Carmichele all obviously rest on a certain sort of conclusion regarding the sub- stantive content (as distinct from the agents to whom applicable) of the higher-law guarantees involved in these cases. In all of them, the applicable higher law was found to impose on the governments concerned certain active duties of protec- tion of persons within their territories.
The substantive content of U.S. constitutional law, as construed by the Supreme Court in DeShaney, is drastically different. Why? We could say that, unlike the European Convention (Article I) and the South African Constitution (sections 7 and 12(1)(c)), the U.S. Constitution nowhere expressly imposes any active state duty of protection. But are you sure about the equal protection clause? And would this textual difference fully or suffi ciently explain the stark difference in the doctrinal outcomes between Europe and South Africa, on the one hand, and the United States on the other?
3. In New York Times Co. v. Sullivan, 376 U.S. 254 (1964), the Supreme Court upheld the Times’s claim that its constitutionally guaranteed right of free speech was infringed by a large defamation judgment obtained against it in the courts of Alabama by L. B. Sullivan, and so ordered the judgment vacated. Obviously, it was not Alabama but Sullivan, acting in the case as a private party, who made the choice to sue the Times. Was it Sullivan, then, who committed the constitutional violation of which the Times complained? (Was it the paparazzi who committed
The State Action Doctrine / 237 the Article 8 violation of which Princess Caroline complained in von Hannover?) Did the Supreme Court, then, apply the guarantees of the First and Fourteenth Amendments horizontally in Sullivan?
The Sullivan Court expressly affi rmed that the Fourteenth Amendment is directed only against “state” action, not private action, but it had no diffi culty fi nding state action on which to fasten constitutional scrutiny. “The Alabama courts,” the Court explained,
have applied a state rule of law which petitioners claim to impose invalid restrictions on their constitutional freedoms of speech and press. It matters not that that law has been applied in a civil action and that it is common law only . . . . The test is not the form in which state power has been applied but, whatever the form, whether such power has in fact been exercised.
In other words: Who made the law that encroached unduly on the free speech of the Times? Why, Alabama did, for this law is no less the act and choice of the state of Alabama because it is common law “made” by the state’s judiciary than if it had been statute law made by the state’s legislature. Such was the Supreme Court’s inference, and it seems impossible to resist in our post-Erie age. See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 79 (1938) (quoting from prior decisions) (“Law in the sense in which courts speak of it today does not exist without some defi nite authority behind it. The common law so far as it is enforced in a State, whether called common law or not, is not the common law generally but the law of that State existing by the authority of that State . . . The authority and only authority is the State, and if that be so, the voice adopted by the State as its own [whether it be of its Legislature or of its Supreme Court] should utter the last word.”)
In your view, did the Supreme Court give horizontal effect to the U.S.
Constitution’s freedom-of-speech guarantee in Sullivan? If your answer is “no,”
why is it? (On whom, after all, did the burden of the Court’s decision fall? Was it Alabama that suffered being stripped of a damage award, or was it J.B. Sullivan, a private party? If that is not giving horizontal effect to a constitutional guaran- tee, what would be?) If your answer is “yes,” then does it follow that horizontal effect can at least sometimes be found where the act that fails constitutional scru- tiny is the act of a state? Would that in fact be an apt summary of what occurred in von Hannover?
4. According to the Supreme Court in Sullivan, the state action there consisted in Alabama’s common law of libel being what it was. Is a state’s law being what it is always and necessarily a product of active choice (as opposed to mere passivity or nonaction) by a state’s legislature or by its courts in common law mode? If the answer is yes, then does every judicial decision in a civil law case—tort, contract, property, and so on—involve state action onto which constitutional scrutiny can fasten? Is that what von Hannover teaches?
Consider once again our reconstructed Moose Lodge litigation from Note 2.
Are not the state courts wielding state law against Irvis? Might not the state’s law possibly have been receptive, rather than hostile, to Irvis’s claim of a right to race-blind service? If it is not receptive, is not that because someone so chooses?
Who is that “someone,” if not a lawmaking organ of the State of Pennsylvania?
(Note again that it does not follow that a choice hostile to Irvis’s claim is uncon- stitutional on the merits. That is a separate question. On the evidence of its Moose Lodge opinion, the Supreme Court would certainly uphold Pennsylvania’s choice as constitutional.)
5. The judgment of the Strasbourg Court in von Hannover clearly refl ects an answer to the last question that is characteristic of the constitutional law of Germany, South Africa, and some other countries (including the United States, per Sullivan?):
A country’s or state’s law governing private, civil relations is always something for which some offi cial or offi cial body of that state or country is answerable to constitutional requirements, whether that law supports (as in Sullivan) or denies (as in von Hannover) relief in a given case.
In South Africa, that stance is arguably dictated by Constitution § 39(2):
“When interpreting any legislation, and when developing the common law or customary law, every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights.” (Several other constitutional clauses affect the result in South Africa, and the exact force of § 39(2) is a matter of ongoing debate, but that debate is not relevant here.) The Constitutional Court—in Carmichele and elsewhere—has read § 39(2) as clothing every South African litigant with an enti- tlement to a check by the trial judge, for harmony with the aims and values of the Bill of Rights, of every common law rule that the judge might apply when decid- ing against that litigant’s claim or defense; and claims of failure or error by trial judges in this regard are reviewable by the Constitutional Court. In Carmichele, to illustrate, the responsible police offi cials eventually were held liable, but not for having violated any duty directly imposed on them by the Constitution. They were rather held liable for commission of the common law tort of negligent cau- sation of harm, after the common law of negligence had undergone constitution- ally mandated review and reform in order to bring it in line with the “spirit, purport, and objects” of the Bill of Rights. Some South African jurists use the terminology of “indirect horizontal” application of the Bill of Rights to describe such a course of decision. You should be able to see that a constitutional require- ment that it be undertaken in every suitable case means, in effect, that no case comes to court in South Africa that is not potentially a constitutional case. Is there something wrong with that? (In Flagg Brothers, the U.S. Supreme Court called such a result “intolerable,” so maybe there is.)
In the course of deciding in Carmichele that § 39(2) should be given such an effect, the Constitutional Court made reference to a prior, similar development in German constitutional law, under the name of Drittwirkung or “third party effect” of constitutional guarantees. The notion is that the guarantees of the German Basic Law are directly and primarily applicable to conduct by the gov- ernment, but that they also “radiate” throughout the legal order to require civil law modifi cations as necessary to keep the civil law in tune with constitutional value-orderings.
The Drittwirkung doctrine has its source in the famous case of Eric Lüth, 7 BVerfGe 198 (1958). Lüth was ordered by German lower courts to desist from efforts to organize a public boycott against an anti-Semitic movie, in a lawsuit brought against him by the fi lmmaker, on the basis of a provision of the German civil code making it tortious to cause damage to another “in a manner offensive to good morals.” Lüth successfully complained before the FCC that this ruling was offensive to the principle animating the Basic Law’s guaranty of freedom of speech. As the FCC wrote:
The primary purpose of Basic Law rights is to safeguard the liberties of the indi- vidual against interferences by public authority. They are defensive rights of the indi- vidual against the state. This [purpose] follows from . . . the historical developments leading to the inclusion of basic rights in the constitutions of various countries. . . .
The State Action Doctrine / 239 It is equally true, however, that the Basic Law is not a value neutral document. . . . Its section on basic rights establishes an objective order of values, and . . . this value system . . . must be looked upon as a fundamental constitutional decision affecting all spheres of law. Thus . . . every provision of private law must be compatible with this system of values, and every such provision must be interpreted in its spirit. . . . In order to determine what is required by [legal] norms such as [“good morals”], one has to consider fi rst the ensemble of value concepts that a nation has developed at a certain point in its . . . history and laid down in its constitution. . . .
The Constitution requires the judge to determine whether the basic rights have infl uenced the substantive rules of private law in the manner described. . . . If he does not apply these standards and ignores the infl uence of constitutional law on the rules of private law, he violates objective constitutional law by misunderstanding the con- tent of the basic right (as an objective norm); as a public offi cial, he also violates the basic right whose observance by the courts the citizen can demand on the basis of the Constitution. . . . [Citizens] can bring such a decision before [the FCC] by means of a constitutional complaint.
. . . [But it] is not up to [the FCC] to examine decisions of the private-law judge for any legal error he may have committed. Rather, [the FCC] must confi ne its inquiry to the “radiating effect” of the basic rights on private law. . . . (translated by Donald Kommers, The Constitutional Jurisprudence of the Federal Republic of Germany 363–64 (1989))
You should be able to see the Lüth conception at work in the FCC’s von Hannover judgment, noting that the radiating effect there attaches to a regulatory statute (the KUG) along with the general, background private law contained in the German civil code.
6. Some sources and further reading: The Constitution in Private Relations:
Expanding Constitutionalism (A. Sajó & R. Utz eds., 2005); Stephen Gardbaum, Where the (State) Action Is, 4 I•CON 760 (2006); Mark Tushnet, The Issue of State Action/Horizontal Effect in Comparative Constitutional Law, 1 I•CON 79 (2003); Frank I.
Michelman, The Protective Function of the State in the United States and Europe, in European and American Constitutionalism (Georg Nolte ed. 2005); Frank I.
Michelman, The Bill of Rights, the Common Law, and the Freedom Friendly State, 58 U. Miami L. Rev. 401 (2003) (on South Africa); David P. Currie, The Constitution of the Federal Republic of Germany 181–89 (1994) (on Germany and Lüth).