January 7, 2021, marked the seventy-fifth anniversary of Marsh v. Alabama, the case in which the Supreme Court of the United States extended the protections of the First and Fourteenth Amendments to a privately held “company town.” This article makes the case that the longstanding Marsh precedent, and the basic jurisprudential framework it set out, remain important in working through twenty-first century problems regarding public-private partnerships and their impact on constitutional rights. We bring this old ruling into our new century by extrapolating a hypothetical legal controversy from legislation currently under consideration in the states. Thus, the heart of our analysis involves an imagined case (and the resulting, imagined judicial opinions) arising from a potential bill that has not yet become law. This speculative approach is an effective way to think through, in advance, stubborn and emergent questions about the constitutional nature and limits of private actions that emulate government functions.
© 2022 BYU J. Reuben Clark Law School
Bruce Peabody and Kyle Morgan,
The Case of the Smart City,
36 BYU J. Pub. L.
Available at: https://digitalcommons.law.byu.edu/jpl/vol36/iss1/10