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Why the Florida Marlins now are state actors in their new stadium

By Rick Karcher, Michael McCann, Geoffrey Rapp, Greg Skidmore, and Howard Wasserman

The gory details of the stadium deal that my esteemed city, county, and state officials recently struck illustrate how my state-action arguments can work as to fan speech in publicly funded stadiums.

If there is anything left to the "symbiotic relationship" test of Burton v. Wilmington Parking Authority (admittedly a debatable proposition for a Civil-Rights-Era-product-of-its-time decision), this deal satisfies it. The government is paying 75 % of the costs to build a cathedral for the long-term predominant use and exclusive benefit of one private entity, in exchange for limited immediate financial benefit, hoped-for "psychic" benefits of keeping the team in town, and potential (but never-fully-realized) downstream economic benefits of a neighborhood and area revival. This is the essence of the exchange of mutual benefits and mutually beneficial relationship that Burton said triggered state action when the private beneficiary restricted constitutional rights in the course of managing that public space.

Think of it this way: The Marlins bear no serious financial burden in this deal. Why not make them bear the burden of having to respect the First Amendment liberties of the fans who are funding this boondoggle.

Full post as published by Sports Law Blog on March 28, 2009 (boomark / email).