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

This article draws on the state action doctrine and the case Marsh v. Alabama to evaluate a recent proposal to create an unprecedented public-private partnership in the state of Nevada. In Marsh, the Supreme Court of the United States held that a private citizen was protected under the U.S. Constitution's First and Fourteenth Amendments in distributing religious literature on the sidewalk of a “company-owned” town. We make the case that both the state policy under consideration and a number of political and economic trend lines indicate that the issue central to Marsh remains pressing at the start of our new millennium: what are the circumstances under which concentrated private power amounts to something akin to government authority, thereby implicating the protections of the national Constitution? Our goal in this piece is not to offer an exhaustive or thorough review of the particulars of the “Innovation Zone” bill under consideration, but to consider, in advance, constitutional problems that might arise from granting corporations broad powers traditionally wielded by governments.