III. A Negative, Vertical Right
A. ‘Negative’ Rights and ‘Vertical’ Rights
I have so far considered the idea that the freedom of political communication is not ‘personal’, in the sense that it serves political, rather than personal, ends. This first meaning of the concept ‘personal right’ is perhaps the most natural sense of the term, but the High Court also uses the term in another way that has nothing to do with the values that underlie the right. When the Court says the freedom is not a ‘personal right’, it also means to say that the freedom is a ‘negative’ rather than a ‘positive’ right.144 When the term ‘personal right’ is used in this way, a right that serves personal values would still not count as a ‘personal right’ so long as it operated to limit government rather than to require government action.145
The equating of personal rights with positive rights is suggested clearly by the following passage in the High Court’s unanimous judgment in Lange:
‘[Sections] 7 and 24 and the related sections of the Constitution necessarily protect that freedom of communication between the people concerning political or government matters which enables the people to exercise a free and informed choice as electors. Those sections do not confer personal rights on individuals. Rather they preclude the curtailment of the protected freedom by the exercise of legislative or executive power.’146
The passage is almost immediately followed by the quotation of this passage from Justice Brennan’s judgment in Cunliffe v Commonwealth: ‘[t]he implication is negative in nature: it invalidates laws and consequently creates an area of immunity from legal control’.147
Adopting this analysis, the freedom of political communication should be seen as a freedom from interference with political communication rather than a guarantee of a right to participate in it. As Justice Brennan stated in Theophanous v Herald & Weekly Times, ‘[i]f the freedom implied in the Constitution were a personal right or immunity, it would extend to what is needed to facilitate or permit its full enjoyment’.148 It was this conception that led to the rejection of a petition by a candidate in a federal election for orders that various media bodies ensure proper coverage of independent candidates.149
Although the Court uses the term ‘negative’, it also draws the conclusion that the freedom of political communication applies only to legislative and executive power. This aspect of its treatment of the freedom implies another quality: the right applies only to actions of the state and does not protect individuals from actions of other private parties. Thus the freedom has only ‘vertical’ (rather than a ‘horizontal’) operation.150
This classification of the freedom of political communication is consistent with conventional understandings about constitutional rights. The classification of the freedom as ‘negative’151 is consistent with the liberal philosophical tradition152 and aspects of the common law.153 It is also commonly the case that constitutional rights have a ‘vertical’ application.154 But, although classifying the freedom these ways is not seriously the subject of any controversy, it does give rise to further complications.
The concept of a ‘negative’ right and the concept of a ‘vertical right’ both depend on troublesome distinctions. A negative right protects a citizen from action (rather than requiring action to ensure her rights) and therefore requires a distinction between action and inaction. A vertical right protects against state (not private) action and therefore requiring a distinction between public and private actors.
The problem with the action/inaction distinction is that an ‘act’ can often be recast as an instance of ‘inaction’. Occurrences within a closely related chain of events provide easy examples: the failure to apply the brakes while driving a car can be regarded as the omission to apply the brake or act of driving without applying the brakes.155 This kind of argument is even stronger when government is involved. The pervasive role of government in modern life means that government ‘inaction’ almost always occurs within the context of some government action, even if that action is simply allocating resources156 or providing the legal framework in which a private party acts.157 The United States Supreme Court has held, for example, that constitutional rights may confer certain obligations on government ‘when the State takes a person into custody and holds him there against his will’.158 And, more wide-ranging arguments have been made along the same lines, though without success in the courts.159 In these situations, even a failure to act could be characterised as state ‘action’. This kind of analysis blurs the distinction between positive and negative rights.160
The problem with the second distinction - between public and private actors - lies in determining who the relevant ‘actor’ is and the public or private status of that actor. Where a private party performs a ‘public function’ it may be possible to cast it as acting in the role of government and thus its acts as ‘state action’.161 Similarly if the state forces or encourages a private party to act, its actions might be ‘fairly attributable’ to the state.162 In the United States, where most constitutional rights are understood to have only a ‘vertical’ operation,163 courts have dealt with this problem by developing a complicated series of tests to determine whether there is ‘state action’ involved. These tests that depend on such things as whether the action of a private party is ‘involved with’,164 coerced, ‘encouraged’ or ‘authorized165’ by the state or is performing a ‘public function’.166 The kind of analysis thus blurs the distinction between horizontal and vertical rights. Where the state is sufficiently involved in the actions of a private party the relationship between that party and another individual can be recast as a relationship between the individual and the state.
The difficult nature of these distinctions does not appear to have troubled the High Court. However, its failure to appreciate the difficulty of the vertical/horizontal distinction has undermined its analysis of the relationship between the freedom of political communication (and, more generally, the Constitution) and the common law.
B. The Relationship Between the Common Law and the Constitution: The High Court’s Analysis in Lange
1. The Separation of the Common Law and the Freedom of Political Communication
In Lange the Court held that the sections of the Constitution that establish the freedom of political communication ‘preclude the curtailment of the protected freedom by the exercise of legislative or executive power.’ 167 By failing to mention ‘the common law’, the Court adopts the position that the freedom of political communication does not apply (at least directly) to the common law.
This position effectively reverses that taken in Theophanous v Herald & Weekly Times.168 In that case the majority, following the example of American constitutional law, treated a rule of the common law as subject to constitutional requirements in much the same way as a statutory or executive rule. The Court adopted a new constitutional rule that provided a defence to common law actions in defamation that was distinct from the common law.169 In Lange, however, the position taken by Justice Brennan in his dissent in Theophanous170 prevailed. The Lange Court held that the freedom of political communication and the common law of defamation operated in separate spheres. More fully, the Court put it this way:
[T]he question whether a publication of defamatory matter is protected by the Constitution or is within a common law exception to actionable defamation yields the same answer. But the answer to the common law question … defines the existence and scope of the personal right of the person defamed against the person who published the defamatory matter; the answer to the constitutional law question defines the area of immunity which cannot be infringed by a law of the Commonwealth, a law of a State or a law of [the] Territories … That is because the requirement of freedom of communication operates as a restriction on legislative power.171
In this light, it is not surprising that the rule enunciated in Theophanous (a constitutional defence to a common law claim) was abandoned in Lange.172
2. The Constitution’s Indirect Effect on the Common Law
Although I argue that this separation between the common law and legislative and executive power is wrong, I should acknowledge, however, that a further finding of the Court mitigates the effect of this separation. In Lange, the Court also held that the Constitution has an indirect effect on the common law:
The Constitution, the federal, State and territorial laws, and the common law in Australia together constitute the law of this country and form ‘one system of jurisprudence’’ … within that single system, the basic law of the Constitution provides the authority for the enactment of valid statute law and may have effect on the content of the common law.’173
In Lange this meant that the common law of defamation had to conform to constitutional requirements of the freedom of political communication.174
Therefore, the practical effect of Lange is relatively clear. Despite the supposed distinction between the common law and legislative and executive power, courts will develop the common law to conform to constitutional values,175 and those aspects of the law that reflect constitutional values are protected from legislative interference.176 Nonetheless, as I will now show, the Court’s reasoning with respect to the relationship between the Constitution and the common law is deeply flawed.
C. Why Distinguish between the Common Law and Legislative and Executive Power?
The key feature of the Court’s reasoning on this point is the distinction it draws between the exercise of legislative or executive power (which is said to be directly subject to constitutional requirements) and the common law (which is said not to be, at least where it applies to regulation relations between individuals.)177 Three rationales for the distinction can be found in the judgments, and I will argue that all are inadequate.
The ‘Personal Right’ Justification.
The justification most clearly apparent from Lange itself depends on the idea that the freedom of political communication is not a ‘personal right’. Consider once more the passage cited above:
Those sections [from which the freedom is implied] do not confer personal rights on individuals. Rather they preclude the curtailment of the protected freedom by the exercise of legislative or executive power.178
The argument seems to be that although a ‘personal right’ might have some application to the common law, a mere limitation on power (like the freedom of political communication) does not.
A similar kind of argument also appears in Justice Brennan’s dissent in Theophanous, which first advanced the idea that the freedom of political communication only applies to legislative and executive power. He distinguishes between an ‘absolute freedom’ and a ‘freedom which is protected or guaranteed by law’:179
There are … two distinct senses in which the term ‘freedom may be used. One is a freedom to do anything – an absolute freedom; the other is a freedom or immunity from legal regulation created, expressly or impliedly by the Constitution – a constitutional freedom. The Court is concerned only with the nature and scope of constitutional freedoms.180
The absolute freedom seems to correspond with a positive right (it confers a freedom that is protected even from private interference) whereas the ‘freedom guaranteed by law’ is a freedom from the interference of legal regulation.
In the light of the discussion in Parts I and II, however, it is quickly apparent that this line of reasoning is flawed. First, it simply does not follow from either of the possible meanings of ‘personal right’ that the freedom of political communication (or the Constitution more generally) does not apply to the common law. The fact that the freedom exists to protect a system of government rather than more ‘personal’ values does not establish that it has no application to the common law. On the contrary, as cases like Theophanous and Lange show, common law rules (like the rules of defamation) might threaten the proper operation of representative government. Therefore, if the freedom is to protect representative government, it must be concerned with the common law.
Further, if by stating that the freedom is not ‘personal’, the Court means to establish that it is a ‘negative’ freedom, the exclusion of the common law is similarly unconvincing. It is entirely consistent with the idea of a negative freedom that it would protect individuals from the operation of the common law. If the freedom of political communication is a ‘freedom from’ rather than a ‘right to’, then why is it not a freedom from the interference of the common law?
If the ‘personal right’ argument is to have any significance for the distinction between the enforcement of the common law and the exercise of legislative and executive power it must be found in arguments relating to the ‘vertical’ operation of the freedom. It is this feature that appears to be at the heart of two further arguments made for the distinction in Justice Brennan’s dissent in Theophanous.
2. A Limit on Powers Conferred by the Constitution
The first of these arguments is suggested by the passage from Justice Brennan’s dissent just quoted. He refers to ‘legal regulation created … by the Constitution.’181 The full significance of this reference emerges elsewhere in the judgment. Justice Brennan seems to suggest that the freedom of political communication applies only to powers conferred by the Constitution:
When governmental powers are conferred by the Constitution, their scope is impliedly limited to the extent necessary to maintain the structure of government prescribed by the Constitution. The limitation creates a freedom.182
It is difficult to discern the basis for the distinction between a right that applies to regulation created under constitutional powers and which confers immunity from the common law.183 It may, however, rely on the idea that a right that applies to regulation created under constitutional powers is operating ‘vertically’ whereas a right that applies to the common law is operating ‘horizontally’.
In any event, the obvious reply to this argument is that, at least when federal courts deal with the common law, they are exercising a power that is conferred by the Constitution. Just as the Constitution confers federal legislative and executive power (in Chapters I and II), it confers federal judicial power (in Chapter III). Thus if the freedom of communication limits powers conferred by the Constitution, it would also limit the exercise of federal judicial power and thus the interpretation and development of the common law by the federal courts.184
This argument does not, of course, solve the question of how the freedom of political communication would apply to state and territory courts enforcing the common law.185 However, it is well settled that the freedom of political communication applies to state and territory legislative and executive power.186 Once it is established that the freedom of political communication limit federal judicial power, as well as legislative and executive power, there seems no reason to draw the distinction at the state and territory level. Further, considering that the power of state and territory courts to enforce the common law is conferred by statute,187 the distinction between the exercise of state and territory legislative power and the exercise of state and territory judicial power becomes very blurry indeed.
In short, then, the application of the common law by courts resembles the exercise of legislative and executive power more closely than Justice Brennan seems to recognize. At the federal level, all three powers are conferred by the Constitution and thus on his analysis are limited by the implications drawn from it. At the state and territory level, it is already accepted that legislative and executive powers are limited by the freedom. No reason is given to distinguish the exercise of state and territory judicial power and it is difficult to imagine any such justification, given that state and territory judicial power is itself conferred by statute.
3. The Common Law as Private
The vertical/horizontal distinction even more directly evident in the second argument to emerge from Justice Brennan’s extended treatment of the relationship between the common law and the Constitution. Justice Brennan relies upon a conception of the common law as ‘private’, as principally concerned with relations between individuals. By contrast, the Constitution is seen as directed to government:
Although the Constitution prevails over the common law where there is inconsistency, there is no express inconsistency between the Constitution and those rules of the common law which govern the rights and liabilities of individuals inter se. That is because the Constitution deals not with the rights and liabilities of individuals inter se but with the structure and powers of organs of government, including powers to make laws which deal with those rights and liabilities.
The result, on his analysis, is that the common law and the Constitution will only conflict in the limited circumstances in which common law doctrines address the structure and powers of government. In these circumstances the Constitution would override the common law (and thus the common law constitutional arrangements that existed before federation were displaced by the Constitution). But given the principally ‘private’ nature of the common law, he argues, such conflict is rare because the common law more typically deals with individual relations rather than government power:
The Constitution altered the common law by its provisions creating the structures and powers of the organs of government but it does not purport to affect the common law rights and liabilities of individuals inter se. That area of the common law and the area covered by the Constitution do not overlap.188
On this view, the freedom of political communication, as a ‘vertical’ right concerned only to prevent governmental interference with political discussion,189 is not concerned with the ‘private’ common law, such as the law of defamation.190
This position, however, overlooks the governmental nature of the common law, and runs counter to other aspects of the Court’s reasoning in Lange.
(a) Developing the Common Law is ‘State Action’
The argument that the common law is ‘private’ confuses the subject of the common law with the nature of the power to develop, interpret and enforce it. Although the subject of much of the common law is the regulation of relations between individuals, the power to develop, interpret and enforce the common law should be regarded as an act of government in much the same way as legislative and executive action.
A clear statement of this position is found in American constitutional law in New York Times v Sullivan.191 In upholding a claim that the law of defamation interfered with First Amendment free speech rights, the Court held:
Although this is a civil lawsuit between private parties, the … courts have applied a state [common law] rule of law which petitioners claim to impose invalid restrictions on their constitutional freedoms of speech and press. It matters not that that law has been applied in a civil action and that it is common law only, though supplemented by statute … The test is not the form in which state power has been applied but, whatever the form, whether such power has in fact been exercised.192
Thus New York Times recognizes that, although the act of an individual might be adequately characterised as simply a private wrong by an individual against and individual, the state becomes involved either by protecting the acts, or by vindicating the injured party.193 On the American analysis, the freedom of political communication would apply to the common law, even conceding the freedom’s ‘vertical nature’, because it applies ‘vertically’ to protect the individual from the government’s enforcement of the common law.
The American doctrine accords more readily with the realities of the exercise of government power. Citizens are bound by common law rules just as much as they are by statutory rules. To argue that the application of the common law is not an exercise of government power (because the common law is ‘private’) simply neglects the governmental nature of the common law enforcement.
The Supreme Court of Canada has exhibited similar misunderstandings as appear in Lange in its refusal to apply the Charter to common law disputes between private parties.194 The Supreme Court rejected the argument that enforcement of the common law was a form of government power, on the basis that:
While in political science terms it is probably acceptable to treat the courts as one of the three fundamental branches of Government ... I cannot equate for the purposes of Charter application the order of a court with an element of governmental action. This is not to say that courts are not bound by Charter. The Courts are, of course, bound by the Charter as they are bound by all law. It is their duty to apply the law, but in doing so they act as neutral arbiters, not as contending parties involved in a dispute.195
It is of course true that the courts cannot be equated with one of the ‘contending parties’. Courts and the judges that compose them are taken not to have an interest in the outcome and that, in a sense, they act as ‘neutral’ arbiters. However, that says nothing about the kind of power they are exercising. Further, this reasoning seems to neglect the role judges have in making the common law, thus betraying a pre-realist understanding of the common law as a body of law that the courts could somehow ‘discover’ and apply to cases before them, rather than as a body of law that is itself created by judges.196
Given the unconvincing nature of the distinction between enforcement of the common law and legislative and executive power, it is not surprising that it leads to absurd results. As Brian Slattery has observed in the Canadian context, the proposition that the Charter does not apply to the common law enforced between private parties leads to the strange consequence that, where a statute modifies the common law governing a particular subject but leaves other aspects of the common law intact, only the statutory modifications are directly subject to Charter requirements, whereas the common law is only indirectly subject to it through the requirement of conformity.197
(b) The American Position Distinguished?
Given the confusion underlying the Australian and Canadian approached, the American understanding of the resolution of common law disputes by courts as ‘state’ action seems highly preferable. The High Court does make some attempt to distinguish the American position and it is therefore necessary to address those arguments. In one of the most puzzling passage in Lange, the High Court stated:
The First Amendment to the United States Constitution prohibits Congress from making any law abridging ‘the freedom of speech, or of the press.’ This privilege or immunity of citizens of the United States may not be abridged by the making of ‘the enforcement’ by any State of ‘any law’. That is the effect of the interpretation placed on the Fourteenth Amendment … It makes little sense in Australia to adopt the United States doctrine so as to identify litigation between private parties over their common law rights and liabilities as involving ‘state law rights’. Here, ‘[w]e act every day on the unexpressed assumption that the one common law surrounds us.’198
The Court seems to have relied on two features of American constitutional law to distinguish the American position: first that, in the United States, the common law is considered (as a general matter) to be state law; and second, that the Fourteenth Amendment is interpreted (through the doctrine of ‘incorporation’) to apply most of the rights in the Bill of Rights to the states. In the United States, the effect of these two propositions is that the First Amendment (which, in its terms, applies only to the federal Congress) applies to the enforcement by the states of the common law.199
Certainly the Australian legal system does not share these distinctive features of American law, but neither has much to say about the application of the Australian Constitution to the enforcement of the common law. First, it is irrelevant that the common law is considered to be state law in the United States, while in Australia there is apparently ‘a single common law’. In the Australian context it is clear that many constitutional requirements, including the freedom of political communication, apply to the exercise of state legislative and executive power. Therefore there is no need to consider whether the law in question is attributable to the states or the Commonwealth. The real question is whether the enforcement of the common law is to be treated separately from other government functions (i.e. whether it is to be regarded as the action of government).
Once this point is understood, it is also clear why the doctrine of incorporation is irrelevant to the Australian context. It is only because the common law in the United States is conceived of as state law that there is a need to find some way to apply the provisions of the Bills of Rights to it.200 Therefore, the absence of such a doctrine in the Australian context says absolutely nothing about whether the Australian Constitution applies to the common law.201 Thus, the relationship between the common law and the Constitution is not determined by these two distinctive features of American law, but by the concept of the enforcement of the common law as state (in the sense of government) action. Without a good explanation for why the enforcement of the common law is not government action, the reasoning underlying the American position is compelling.
(c) Inconsistency with the ‘Conformity’ Requirement
The final argument against the High Court’s position is found in its own reasoning. The second of the two propositions endorsed in Lange – that the common law must conform to the Constitution202 – betrays the notion that there is an element of state action in the judicial enforcement of the common law. The reason the idea of inconsistency between the common law and the Constitution is unappealing is because conflicting instructions seem to be coming from the same source. This reflects our idea that the common law and the Constitution are essentially products of the same source: the state.
The argument that the common law is governmental in nature is also consistent with Sir Owen’s Dixon’s writings, which influenced the High Court’s understanding of the relationship between the common law and the Constitution.203 Dixon emphasized the Constitution’s common law origins: that the Australian Constitution is a statute of the Parliament at Westminster, whose powers are themselves conferred by the common law. In Dixon’s view therefore, the Australian Constitution exists by virtue of and, as his judgment in Australian Communist Party v Commonwealth204 makes clear, in certain cases is limited by, fundamental common law doctrines.
This close relationship between the common law and the Constitution does assist the Court in reaching its conclusion that the common law must conform to the Constitution,205 but it also points to the more general proposition that common law enforcement is governmental in nature. As one analyst of Dixon’s constitutionalism put it, ‘the statement that common law must conform to the Constitution is merely an acknowledgment that the Constitution is itself derived from the common law: they cannot be at odds because they are moulded from the same stuff.’206
Thus, by adopting the position that the common law must conform to the Constitution, the Court effectively contradicts its earlier proposition that the Constitution and the common law operate in separate spheres. If this were true, if (as Justice Brennan put it) there was no ‘overlap’207 between the common law and the Constitution, then why would there be any concern as to inconsistency between them?208
D. Reconceptualizing the Relation of the Freedom to the Common Law - Objections
The distinction drawn by the Lange court between the common law and the Constitution is therefore unconvincing and inconsistent with other aspects of the High Court's position. The Court should openly recognise that the Constitution requires that common law rules conform to the Constitution because development and enforcement of the common law is a governmental act. To conclude my argument, I should address some of the arguments against reconceptualizing the relationship between the common law and the Constitution in this way.
Perhaps most obviously, it might be said that the reconceptualization I advocate makes little difference. There is something to this point. After all, one of the arguments that I make against the Court’s current analysis is that it actually treats the common law as if it were subject to the Constitution by requiring that the common law conform to the Constitution. Further, the current ‘indirect method’ of applying the Constitution to the common law may have some advantages. Existing common law doctrine provides a base from which the courts can make the required changes.209 However, the fact that the High Court is already acting as if the common law is subject to constitutional requirements is really an argument for reconfiguring its reasoning to match its results. Further by continuing the current method of applying the Constitution to the common law, the Court could preserve any benefits in the current approach.
The important thing about the analysis I advocate is that it provides the courts with the right analysis to explain their actions and having the right analysis is likely to help the further development of the doctrine. The time may come when the High Court is faced with a claim that a private party has infringed the freedom of political communication because its private actions were supported by the state, or because it is performing a traditionally public function.210 The Australian courts might decline to apply the freedom of political communication (or any other constitutional doctrine at issue) in these circumstances, and might even adopt the position that state encouragement of private action or the private performance of public function never justifies a finding that the freedom of political communication has been infringed. If the courts adopt the approach I have suggested, however, they will at least be asking itself the right question - where does the state’s responsibilities for its action end?’ – rather than relying upon an artificial distinction between forms of government power.
The second point that might be put against my suggestion that the development of the common law be treated as state action is that ‘state action’ has proved a particularly difficult concept for the American courts.211 The standard analysis is that the concept of state action is over-inclusive. Whenever a dispute reaches a court, it is almost always possible to identify some state action in the matter, even if it is simply that the general law protects the act complained of.
This criticism applies especially clearly to the general recognition that the enforcement of the common law constitutes state action. That proposition was established by Shelley v Kraemer,212 in which the United States Supreme Court found that the enforcement of a common law restrictive covenant prohibiting occupancy of residential property by non-whites violated the Fourteenth Amendment’s equal protection requirement.213 As Professors Gunther and Sullivan explain:
If Shelley were read at its broadest, a simple citation of the case would have disposed of most subsequent state action cases. Some seemingly ‘neutral’ state nexus with a private actor can almost always be found at least by way of the usual state law backdrop for the exercises of private choices … Given the entanglement of private choices with law, a broad application of Shelley might in effect have left no private choices immune from constitutional restraints.214
The point is readily transferable to the freedom of political communication. If the Shelley principle were consistently applied, the owner of private property who wished to limit the discussion of federal politics, or limit advocacy of particular views about federal politics, on that property could be subject to the freedom of political communication.215 The owner’s private choice to restrict free political discussion is ultimately backed by the law of trespass, and (on the Shelley approach) that would be sufficient to satisfy the ‘state action’ requirement. Of course, we have a strong intuition that such action should be regarded as private, rather than governmental.216 The state seems really to be acquiescing in the private choices of another. However, it is difficult to find a satisfactory means of distinguishing between circumstances where the state’s role in providing the legal framework for private action is mere inaction and where it is constitutionally problematic. The danger of adopting Shelley, then, is that Australian courts would launch themselves on a search for a principle to limit state action doctrine, a search that has proved so troublesome for their American counterparts.
The argument that developing a state action doctrine is too difficult to attempt is not, however, entirely persuasive. There is an important point of distinction between Shelley and cases like Lange. In Lange (and for that matter New York Times) are particularly easy cases in which to find unconstitutional state action. They are cases in which the content of rules of the common law offended a constitutional limitation. The common law of defamation simply did not give sufficient protection to political discussion. In such a case, not only is state action readily apparent,217 but the unconstitutional feature of the arrangement is evident in the face of the rule, rather than in the private ordering it is used to support. In Shelley, on the other hand, the law relied upon (the law of restrictive covenants) was, on its face, apparently neutral, and the unconstitutional racial discrimination lay in the private arrangement (the particular restrictive covenant at issue).218 In recognising the existence of state action in a case like Lange, the Australian courts would thus only be adopting the most uncontroversial feature of state action doctrine. Far from abandoning any limit on the application of rights to ‘private’ action, it would recognize only that constitutional limitations apply to the enforcement of common law rules, the content of which violate the relevant constitutional principle.
In any event, there is a more fundamental reason that the Australian courts cannot avoid the task of identifying where there is state action. State action doctrine of some kind is a logical consequence of regarding the freedom of political communication as one that limits government power. Of course, the Court describes the freedom as one that limits only legislative and executive power. But, as I have explained above, the freedom is best understood as a limit on the actions of government generally, as there is no good reason to exclude the enforcement of the common law from the concept of state action. If that is the case, then the Court has to embark on the course of determining when the government acts. As difficult a task as it may be, the question is an inherent part of the way that the Court has defined the freedom.