Legal Definitions - governmental-function theory

The governmental-function theory is a principle in constitutional law that allows the actions of a private organization or individual to be treated as if they were actions of the government itself. This theory applies when a private party performs a role or provides a service that is traditionally or exclusively the responsibility of the government. When this theory is invoked, the private party's conduct becomes subject to the same constitutional limitations that would apply to the government, particularly concerning fundamental rights such as due process and equal protection.

Here are some examples illustrating the governmental-function theory:

• Private Prison Operations:

  Imagine a state government contracts with a private corporation to operate a correctional facility. While the corporation is a private entity, running a prison and detaining individuals is a function traditionally and exclusively performed by the government. If this private prison were to deny an inmate a fair hearing before imposing severe disciplinary action, which is a violation of due process, the governmental-function theory could be applied. This would mean the private corporation's actions must comply with the constitutional requirement of due process, just as if the state itself were directly running the prison.

• Private Security in a "Company Town":

  Consider a large industrial company that owns an entire town, including all housing, stores, and public spaces. The company employs its own private security force to maintain order, enforce rules, and make arrests within the town limits. In this scenario, the private security force is performing comprehensive law enforcement, regulating public behavior, and making arrests—functions typically exclusive to municipal police. If this private security force were to engage in discriminatory policing practices against a specific group of residents (an equal protection concern) or conduct unreasonable searches and seizures, the governmental-function theory could be invoked. This would subject their actions, despite being carried out by a private entity, to the same constitutional standards that apply to public police departments.

• Private Management of a Public Forum:

  Suppose a city leases a prominent public park, historically used for protests and public gatherings, to a private event management company. The company then creates strict rules for speech and assembly in the park that are far more restrictive than what the city itself could legally impose. Managing a public forum and regulating speech within it is a traditional government responsibility related to First Amendment rights. If the private company attempts to ban certain types of peaceful protests or imposes content-based restrictions on speech that would be unconstitutional if done by the city, the governmental-function theory could be applied. This would subject the private company's rules to the same First Amendment scrutiny as if the city itself had enacted them, ensuring that fundamental rights are protected even when a private entity is performing a public role.