From the Company Town to the Innovation Zone: Frontiers of Public Policy, the State Action Doctrine, and the First Amendment

The first is what we might identify as a state association or cooperation standard (what Buchanan calls the “State Nexus Issue”). ⁽⁴¹⁾ As the Court articulated in Brentwood Academy v. Tennessee Secondary School Athletic Association, “state action may be found…only if…there is such a ‘close nexus between the State and the challenged action’ that seemingly private behavior ‘may be fairly treated as that of the State itself.’” ⁽⁴²⁾ In essence, private action can be converted into public action with significant state involvement, as might occur through licensing, delegation of political responsibilities, or vesting powers through statutes or other legal authorities. ⁽⁴³⁾

In Lugar v. Edmondson Oil Co., a truckstop operator alleged that a private party (the Edmonson Oil Company) acting jointly with state agents, including a state court clerk and a County Sherriff, had denied him property without due process of law. In evaluating this claim, the Court set out a two-part test that was supposed to give greater clarity for how one determines when a private actor's “deprivation of a federal right [can] be fairly attributable to the State.” ⁽⁴⁴⁾ Justice White's opinion explained that

First, the deprivation [of a constitutional right] must be caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the State or by a person for whom the State is responsible…Second, the party charged with the deprivation must be a person who may fairly be said to be a state actor. This may be because he is a state official, because he has acted together with or has obtained significant aid from state officials, or because his conduct is otherwise chargeable to the State. ⁽⁴⁵⁾

The Court, applying this test, found that Lugar was eligible to sue for damages related to incursions on his constitutional rights since the Edmonson Oil Co. had “obtained significant aid from state officials.” ⁽⁴⁶⁾

Almost a decade later, Edmonson v. Leesville Concrete Company ⁽⁴⁷⁾ elaborated upon these guidelines, especially by providing a further explanation of the second prong of the Lugar test (requiring that a private party “may fairly be said to be a state actor”). Leesville Concrete found that a private company became a state actor (responsible for upholding the Equal Protection Clause of the Fourteenth Amendment) when it took part in the jury selection process for a civil trial. Justice Kennedy's opinion explained that “[w]ithout the direct and indispensable participation of the judge, who beyond all question is a state actor, the peremptory challenge system would serve no purpose.” ⁽⁴⁸⁾ The opinion went on to say that the Court's precedents “establish that, in determining whether a particular action or course of conduct is governmental in character” a judge must consider “the extent to which the [private] actor [causing constitutional injury] relies on governmental assistance and benefits… and whether the injury caused is aggravated in a unique way by the incidents of governmental authority.” ⁽⁴⁹⁾

How clear are these legal principles? While it does not seem especially difficult to conclude that private parties participating in the jury selection process are subject to the same constitutional constraints that bind government lawyers and judges, other cases show the ambiguities inherent in applying these and other judicial precedents. ⁽⁵⁰⁾ In Blum v. Yaretsky, the Court determined that a private nursing home was not covered within the scope of state action despite being “extensively regulated” by the federal government. ⁽⁵¹⁾ Subsequently, in San Francisco Arts & Athletics v. United States Olympic Committee, the Court found that the U.S. Olympic Committee (USOC), a federally created private corporation, was not bound by the state action doctrine even though federal law chartered the organization, mandated annual reports to Congress “on its operations and expenditures of grant moneys,” and governed such matters as how the USOC could amend its constitution (“only after providing an opportunity for notice and hearing”) and how its membership should be comprised. ⁽⁵²⁾ As the Blum and Olympic Committee opinions suggest, the Court does not readily extend constitutional restrictions on private actors and organizations—even when they are extensively regulated and supported by the state.

Conversely, even for obviously governmental actors, the reach of state action can be stopped by relatively modest private barriers or legal circuit breakers. Thus, NCAA v. Tarkanian found that a public university's suspension and demotion of a public employee (basketball coach Jerry Tarkanian) did not amount to state action. ⁽⁵³⁾ In the Court's judgment, in sanctioning Tarkanian, the University of Nevada, Las Vegas (UNLV) was merely responding to the investigation, fact finding, and penalties imposed on the school by the National Collegiate Athletic Association (NCAA), a private “unincorporated association of approximately 960 members, including virtually all public and private universities and 4-year colleges conducting major athletic programs in the United States.” ⁽⁵⁴⁾ The Court found that the “NCAA cannot be deemed to be a state actor on the theory that it misused power it possessed by virtue of state law” because it sat as a national body composed of public and private participants. ⁽⁵⁵⁾ Consequently, Tarkanian did not prevail in arguing that his Fourteenth Amendment due process rights had been violated by the state of Nevada's role in creating and imposing his NCAA suspension. ⁽⁵⁶⁾

Besides looking to the direct or implicit nexus between a private actor and the state, a second, and admittedly overlapping consideration the Court turns to in state action cases is what we might label an affirmative acts standard. As Huhn explains, in assessing whether the government's relationship with private individuals or organizations creates state action, courts look to “affirmative acts” by government rather than “failures to act.” ⁽⁵⁷⁾ The Court's opinion in Blum noted that governmental tacit “approval of or acquiescence in the initiatives of a private party is not sufficient to justify holding the State responsible for those initiatives.” ⁽⁵⁸⁾ Some more proactive decision is needed to turn something into state action.

The affirmative acts standard was at the heart of the famous civil rights case Shelley v. Kraemer. ⁽⁵⁹⁾ In Shelley, the owners of property subject to a racially restrictive covenant sought to enforce these provisions (and prevent the Shelleys, a Black family, from acquiring the property) through use of the courts. But in a unanimous opinion, the Supreme Court denied this request as comprising state action and a violation of the Fourteenth Amendment's Equal Protection Clause. Racially restrictive housing covenants do not give rise to state action and challenges under the Fourteenth Amendment “[s]o long as the purposes of those agreements are effectuated by voluntary adherence to their terms” by private parties. ⁽⁶⁰⁾ But active “judicial enforcement of private agreements” provided a sufficient basis for a state action claim, and covenant restrictions based on race denied the Shelley family their constitutional guarantee of “equal protection of the laws.” ⁽⁶¹⁾

The courts have sounded similar and perhaps even clearer notes about the necessity of the “action” component of state action in other cases. Thus, in Flagg Bros., Inc. v. Brooks the Court affirmed that it “has never held that a State's mere acquiescence in a private action converts that action into that of the State.” ⁽⁶²⁾

A third analytic guidepost, appearing (somewhat intermittently) in state action jurisprudence involves considering whether the state has leveraged private behavior through coercion or encouragement. This coercion standard builds on the idea that when the state merely authorizes a private party to engage in behavior or pursue a course of action it does not create state action. Instead, the courts require either a more involved and ongoing, cooperative relationship (or state nexus) or private behavior that is induced by government incentives or pressure. As the Court stated in Jackson v. Metro. Edison Co. (echoing Shelley), the mere “exercise of…choice allowed by state law” does not create state action “where the initiative comes from… [private parties] and not from the state.” ⁽⁶³⁾ On the other hand, as Huhn notes, “where the government coerces, encourages, or influences one individual to invade the rights of another, it is state action.” ⁽⁶⁴⁾ Thus, in Reitman v. Mulkey, the Court supported the judgment of the California Supreme Court in finding that a state referendum on the sale, leasing, and rental of property violated the Equal Protection Clause insofar as it would “significantly encourage and involve the State in private discriminations.” ⁽⁶⁵⁾

As mentioned previously, the rise of “big tech” and social media has further complicated this analysis of what comprises state action. Privately held social media websites and “apps” (applications) have become de facto public forums, at least for online communication and expression. But new rules or parameters placed on these companies and platforms by legislatures and other regulators invite us to consider whether the nexus between public authority and private power establishes state action through association or coercion. Consider the example of Florida which passed a “Big Tech” law in May 2021 that would impose $100,000 fines on certain social media companies for removing statewide political candidates from their online platforms, and $10,000 fines for other removed candidates. ⁽⁶⁶⁾

Again, identifying a more or less discrete coercion standard for state action does not resolve how we ascertain or define the necessary level of influence, pressure, or encouragement that turns private action into public action. In many instances, these issues are difficult, and the Court's conclusions and judgments are not self-evident. In Rendell-Baker v. Kohn, for example, the Court declined to identify a private school as a state actor even though a state body (the State Committee on Criminal Justice) needed to approve some of its hiring decisions and “public funds accounted for at least 90% [of the school's operating budget], and in one year 99%.” ⁽⁶⁷⁾

A fourth and final standard the Court has often looked to in evaluating state action is whether a private organization or individual engages in or contributes to distinctive government activities or public functions. Returning to Marsh, the Court found that a privately held town was subject to the protections of the Constitution because it possessed “all the characteristics of any other American town.” ⁽⁶⁸⁾ As the Court elaborated,

Such an emphasis on how a corporation or business has assumed government operations, responsibilities, or powers necessarily shifts our attention away from the state's behavior to that of a private party.

Like other areas of state action jurisprudence, the courts have not been clear or consistent in how they understand this public functions argument or what tools we need to apply it. Perhaps most obviously, private action becomes public action when it effectively replaces the historical operations of the state, including when a private actor engages in “public functions that have heretofore been exclusively performed by government.” ⁽⁷⁰⁾ This orientation is again evident in Marsh. In providing law enforcement through a privately paid deputy, the Gulf Shipbuilding Corporation was assuming one of the quintessential roles of the organized state. ⁽⁷¹⁾

In Manhattan Community Access Corp. v. Halleck, Justice Kavanaugh's majority opinion emphasized that “to qualify as a traditional, exclusive public function within the meaning of our state-action precedents, the government must have traditionally and exclusively performed the function.” ⁽⁷²⁾ Whether Justice Kavanaugh's statement represents a new judicial rule or simply an interpretation of existing doctrine, it is unclear precisely how his two standards (“traditionally” and “exclusively”) work together. While the imposition of income tax would seem to be an “exclusive” power of government, it may not be a “traditional” power in the U.S., given that it was only authorized at the national level with the ratification of the Sixteenth Amendment in 1913. ⁽⁷³⁾ On the other hand, while the power of courts to resolve cases and controversies appears to be a “traditional” government power, the rise of Alternative Dispute Resolution via non-governmental third parties subverts any claim that the judiciary has an “exclusive” hold on this public function. ⁽⁷⁴⁾ In short, it isn’t obvious whether privatizing customary state operations (in such areas as taxation, dispute resolution, and even in providing basic security) pass, fail, or undermine the Kavanaugh test.

In any event, whatever its judicial formulation, an historical or traditional “public functions” approach does not give much guidance when it comes to relatively new (or more controversial) aspects of government performance or policy. Is coordinating climate change policy a distinctive or signature public activity? How about regulating health care insurance markets?

In a subset of pertinent cases, judges emphasize that private action becomes constitutionally protected state action when it occurs in a space or locale where the public has general access (or a reasonable expectation of access). Again, Marsh is explicit on this point: “The more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights become circumscribed by the statutory and constitutional rights of those who use it.” ⁽⁷⁵⁾

In still other instances, the courts note that private action and organizations become subject to the Constitution when they become an intrinsic part (or a potential veto point) of government operations. Thus, in the “white primary” case of Terry v. Adams, the Court ruled that an ostensibly private Texas county political organization, the “Jaybird Democratic Association or Jaybird Party” could not exclude Blacks from participating in its elections because doing so would effectively undermine the state's fair and free “election machinery.” ⁽⁷⁶⁾

These different takes on the public functions standard are not exclusive or incompatible. But they often entail distinct analyses of legal sources: historical or inductive review of the customary operations of governments in some cases, evaluations of the behavior and purposes of private actors in others, and, at times, pragmatic judgments about the facts on the ground.

Before passing on to consider how the four judicial standards for evaluating state action might apply to the issues posed by Nevada's Innovation Zones, we take note of Huhn's observation that there “are two general approaches to applying these various tests.” ⁽⁷⁷⁾ The first is a more formalistic, rule-oriented “approach to state action analysis, separately invoking and applying the various specific tests… for determining whether or not the challenged party is a state actor.” ⁽⁷⁸⁾ Alternatively, some judges assume a more holistic, “totality of the circumstances” interpretive approach, culling through the specific facts and circumstances of a case to weigh and evaluate each standard and “the nonobvious involvement of the State in private conduct.” ⁽⁷⁹⁾

For our purposes, we do not find it especially helpful or rewarding to choose between these two interpretive approaches. A thoroughgoing state action analysis of all four standards necessarily requires a careful review of the facts and particulars of a case and requires courts to consider a full range of factors that could turn private action into constitutionally proscribed government action.

Judgment A (finding state action and ruling for the citizen's First Amendment claims) fits most squarely with the majority opinion in Marsh. Imagine a future corporation acting under the proposed Nevada legislation (or something like it) and assuming effective authority over a Board of Supervisors that can exercise the “powers and duties of a board of county commissioners.” ⁽⁸⁷⁾ Therefore, the company (through its Board) could impose taxes, hire employees with responsibilities that mimic traditional city workers, and even establish a set of private courts for adjudicating local disputes.

In Marsh, the powers assumed by the Gulf Shipbuilding Corporation fell short of these rather sweeping authorities. Gulf Shipbuilding owned most of the infrastructure, commercial, and residential properties in Chickasaw, and, as noted, employed the town's sole law enforcement agent. But the Alabama Corporation did not directly control the educational system, ⁽⁸⁸⁾ the judiciary, ⁽⁸⁹⁾ and licensing, taxation, and regulatory powers ⁽⁹⁰⁾—all of which would be assumed by Innovation Zone companies according to the Nevada draft legislation. Just as the company-owned “business block” in Chickasaw, Alabama was functionally equivalent to “any other town,” an Innovation Zone would resemble a small city, with the caveat that a Zone would have the discretion to possess a near monopoly on public and private functions within its jurisdiction. This discretion is important as Section 20 of an early version of the legislation allowed for the Board of the Innovation Zone to enter into (or terminate) agreements with any local government in the state, including the county in which the Zone exists, to share responsibilities, officers, and duties. If the basic Marsh holding “that under some circumstances property that is privately owned may, at least for First Amendment purposes, be treated as though it were publicly held” remains good law, it appears easy enough to extend this logic to our imagined Innovation Zone.

Once the Innovation Zone Board and the territories under its control fall under the aegis of state action, one can find abundant precedent to then establish that a citizen's right to distribute literature and share her (religious) views is central to our cherished constitutional protections. ⁽⁹¹⁾ As Marsh explained,

[t]he managers appointed by [a] corporation cannot curtail the liberty of press and religion of [the] people consistently with the purposes of the Constitutional guarantees, and a state statute, as the one here involved, which enforces such action by criminally punishing those who attempt to distribute religious literature clearly violates the First and Fourteenth Amendments to the Constitution. ⁽⁹²⁾

Viewed through the lens of the four standards enunciated earlier, this conclusion (Judgment A) is best supported by the “public functions” standard. While Innovation Zones would need to be authorized by state statutes like the one under consideration in Nevada, such legislation, on its own, does not obviously entangle government in the work of the Zone or amount to coercing corporations to take on governance tasks. ⁽⁹³⁾ Under the proposed legislation, Innovation Zones are only approved after a company designee “submits an application” and the corporation invests substantial resources in the proposed Zone. What makes Innovation Zones like Chickasaw, and what makes them akin to municipal governments, is that they do “not function differently from any other town.” ⁽⁹⁴⁾

The case for applying Marsh analysis to twenty-first century Innovation Zones, and finding them constitutionally comparable to twentieth century company towns is rather compelling. But is there a sensible argument for arriving at what we have described as Judgment B? Once one determines that a company directing activities in the Innovation Zone is a state actor, is there a plausible claim that would allow the Zone's Board to prevail in a dispute with a citizen asserting constitutional rights like free speech and freedom of religion?

To begin with, one might note that the liberties enshrined in the Bill of Rights are not inviolate. Even if the Innovation Zone Board and its agents are cognizable as government actors, they might conceivably overcome First Amendment claims with a demonstration of a “compelling state interest” and otherwise meeting the test of strict scrutiny. ⁽⁹⁵⁾ Imagine, for example, that instead of a single religious demonstrator, a gathering of hundreds of protestors occupied the sidewalks of an Innovation Zone for weeks. If one further stipulates that the Zone in question has contracted with the Department of Defense to build a critical military technology (during an active war), it is not farfetched to construct national security considerations that might overcome the free speech and free exercise rights of ordinary citizens, especially considering the Court's historic sympathy to security concerns during periods of international conflict, strife, and declared or de facto war. ⁽⁹⁶⁾

Perhaps more plausibly, even after ascertaining that an Innovation Zone qualifies for state action, a judge might still turn to a public forum analysis to determine the extent of a citizen's rights to use the Zone's sidewalks, streets, and other locales. ⁽⁹⁷⁾

Current doctrine recognizes three classes of government space where individuals might seek to exercise their constitutional civil liberties: traditional public forums, designated forums, and nonpublic forums. ⁽⁹⁸⁾

The first category includes those “places which, by long tradition or by government fiat, have been devoted to assembly and debate.” ⁽⁹⁹⁾ These settings hold “a special position in terms of First Amendment Protection,” ⁽¹⁰⁰⁾ such that the state's powers “to limit expressive activity are sharply circumscribed.” ⁽¹⁰¹⁾ Restrictions on free speech in these contexts are generally limited to “time, place, and manner” regulations or “content-based” exclusions of speech that “serve a compelling state interest and [are] narrowly drawn to achieve that end.” ⁽¹⁰²⁾ In the context of the hypothetical considered here, with protestors or religious adherents on a public sidewalk or street, we seem to have what the Court has identified as “an archetype of a traditional public forum.” ⁽¹⁰³⁾ However, it is precisely this “public” element that deserves closer scrutiny, a point we return to below.

Designated or limited forums are sites or venues the government chooses to open and identify as public forums, ⁽¹⁰⁴⁾ although this decision may be reversed in the future. For designated forums, unlike traditional public forums, the government may put into place reasonable access restrictions. Thus in Widmar v. Vincent, ⁽¹⁰⁵⁾ the Court allowed a state university to restrict certain meeting spaces to student groups, excluding non-students from using these facilities. Such a distinction opens up the possibility that a court might identify a Zone as a designated public forum and restrict its free speech and free exercise rights to employees or those with permanent residency.

Finally, in nonpublic forums “the state may reserve the forum for its intended purposes, communicative or otherwise, as long as the regulation on speech is reasonable and not an effort to suppress expression merely because public officials oppose the speaker's view.” ⁽¹⁰⁶⁾

This backdrop helps us to understand that in a case pitting the First Amendment rights of an individual against a corporation's Innovation Zone interests (in, say, protecting property and conducting business), the outcome could well turn on the specifics of the space in which the sought communication or expression takes place or, more broadly, in how we understand the nature of the Zone itself. If the entire Zone can be regarded as a nonpublic forum, dedicated to promoting commerce or technological innovations, it seems possible that a Zone visitor's distribution of religious literature might be reasonably restricted. Indeed, the draft Nevada legislation makes clear at the very outset that its purpose in creating Zones is to yield benefits to the state as a whole and the “general welfare of its inhabitants.” ⁽¹⁰⁷⁾ This may strengthen the argument that the Zone is more akin to a national bank, military base, or state owned utility than a local public park.

Alternatively, given the expanse of the Zone, an evaluating judge might distinguish some “common areas” (sidewalks, streets, parks, shared dining areas) where the First Amendment fully attaches from others dedicated more directly to say, business, production, research, or technology development—not dissimilar to other “free speech zones” that have been established by governments. ⁽¹⁰⁸⁾ To some degree, engaging in this inquiry requires finding the right analogy. Is an Innovation Zone like an army base, prison, public library, government-owned power plant, or a hotel that state actors rent for closed meetings? If so, the Zone may well be a nonpublic forum that can be closed to speech and religious expression on the grounds that these activities are outside the core reasons for possessing and using the space in question. On the other hand, if the Zone, or portions of it, are properly regarded as creating a venue “for purposes of assembly, communicating thoughts between citizens, and discussing public questions,” ⁽¹⁰⁹⁾ the petitioning citizen will likely win against the claims of the corporation and the Zone Board.

In the end, we should not forget that Marsh's majority freely embraced a balancing test between “the Constitutional rights of owners of property against those of the people to enjoy freedom of press and religion.” ⁽¹¹⁰⁾ While the opinion notes that free speech, press, and religion offer “a preferred position” in our constitutional order, as soon as one begins to conceive of a Zone (or portions of it) as a limited or nonpublic forum, it becomes easier to imagine circumstances in which property rights (and the Zone's primary purposes) overpower free expression claims, especially where these are better consigned to other environments.

Given this discussion, and the apparent parallel between the Marsh company town and the comprehensive powers of the proposed Innovation Zones, it might be hard to think one could find support for judgments (C and D) that find no state action in a company's operation of a Zone. But a closer look at the specific arguments in Marsh points to at least one avenue for concluding that a Nevada-style Innovation Zone might not give rise to such a claim.

Again, Justice Black's majority decision in Marsh v. Alabama emphasized the “public functions” standard for recognizing state action. It further provided three reasons for concluding that the Gulf Shipbuilding Corporation's company-owned town was mostly indistinguishable from a traditional municipality governed by public officials.

First, the Court indicated that Chickasaw, in its appearance, layout, and provided services closely resembled a government entity: “there is nothing to distinguish [Chickasaw] from any other town and shopping center except the fact that the title to the property belongs to a private corporation.” ⁽¹¹¹⁾ Second and closely related, the Marsh majority emphasized the openness and ease of access of Chickasaw to the general public: the town's business block “serves as the community shopping center and is freely accessible and open to the people in the area and those passing through.” ⁽¹¹²⁾ The third functional argument concerned not the physical characteristics, layout, and operations of the town but citizens’ political expectations. The public had a valid “interest in the functioning of the community in such manner that the channels of communication remain free.” ⁽¹¹³⁾ The only way the citizens of Chickasaw could exercise their full rights as “free citizens of their State and country” and capably “make decisions which affect the welfare of community and nation” was to be “properly informed” with “uncensored” information and open channels of communication and debate. ⁽¹¹⁴⁾

Justice Black's analysis is worth recapitulating because it is easy to imagine that Nevada, or other state Innovation Zones, would not closely match the Chickasaw profile. The draft legislation under consideration in Nevada stipulates that an Innovation Zone can only be established on “50,000 contiguous acres of undeveloped land owned or controlled by the applicant…within a single county.” ⁽¹¹⁵⁾

Furthermore, the Zone cannot “be part of a city, town, tax increment area or redevelopment area established by law” and already populated with preexisting “permanent residents,” and it specifically defines the “innovative technology” that would be considered acceptable as “Blockchain, Autonomous technologies, The Internet of things, Robotics, Artificial intelligence, wireless technology, Biometrics, and Renewable resource technology.” ⁽¹¹⁶⁾

This context leads to the inference that, unlike “freely accessible and open” company towns like Chickasaw, Nevada Innovation Zones are likely to be somewhat remote, difficult to access, and distinct from more settled communities. Moreover, given the Zone legislation's stipulation that the acquiring company “will incorporate innovative technology throughout the Zone” ⁽¹¹⁷⁾ it also seems plausible that, unlike Chickasaw, the Zone might well operate and look quite different from other population centers. Existing Innovation Zones have sought to reshape cities and communities, at times engaging in large scale renovations and revitalization that remake an existing populated area where people already live and work. The proposed Nevada bill offers even more of a blank slate for urban and business planners, and the community they create might well look unlike traditional towns or settlements.

Of course, even if the Innovation Zone's Board could convince a court that in its appearance, operations, and accessibility the Zone is distinct from an ordinary municipality, the argument might founder on Marsh's public interest argument. After all, shouldn’t Zone residents have a right to free and uncensored channels of expression and communication regardless of where they work and live?

But even this contention might not prevail if the corporation could establish that the Zone was primarily a workplace and that its inhabitants had other, more suitable and clearly public venues for their exercise of free expression rights. For example, an Innovation Zone might be less analogous to a Marsh-style company town if its employees lived in a different location (and merely worked in the Zone) or if they only inhabited the Zone for finite periods before transferring to other areas more permanently.

These arguments might also assume greater force if judges, in the future, take up the suggestion that online and digital platforms might be regarded as constitutionally protected public forums or “common carriers or places of public accommodation.” ⁽¹¹⁸⁾ If online chatrooms, social media sites, and accounts owned by public (and private) officials have, in effect, replaced sidewalks, streets and town squares as venues for communication and expression, perhaps company towns no longer have the same responsibility to keep their physical forums open to all in order to ensure that the community's “channels of communication remain free.” Stated differently, the new conditions of the twenty-first century may allow us to reconsider Marsh's assumption that “the functioning of the community” requires that an Innovation Zone be recognized as a public entity with a responsibility to allow the “people to enjoy freedom of press and religion” ⁽¹¹⁹⁾ throughout its private property holdings.

It is challenging but possible, therefore, to reason one's way to Judgment D—where one concludes that the Innovation Zone and its governing Board are not state actors and, therefore, that a citizen claiming free expression and religious free exercise rights would not prevail. Getting to Judgment C (no constitutional state action but the citizen still wins) would require the additional step of finding rights outside of the federal Constitution to allow a petitioning citizen to secure a favorable judgment. Such rights might be found, for example, in state statutes or a state constitution. ⁽¹²⁰⁾