Lebron v. National Railroad Passenger Corporation

In her dissent, Justice O'Connor said that the Court had avoided the issue that Amtrak was a private entity. Justice O'Connor wrote that she must continue to answer the question that is properly presented to the Court: whether Amtrak's decision to ban Lebron's speech, although made by a concededly private entity, is nevertheless attributable to the government and therefore considered state action for constitutional purposes. The conduct of a private entity is not subject to constitutional scrutiny if the challenged action resulted from the exercise of private choice, and not from state influence, or coercion.

Justice O'Connor saw no basis to credit to the government Amtrak's decision to disapprove Lebron's advertisement. Although there were a number of factors indicating government influence in Amtrak's management and operation, none suggested that the government had any effect on Amtrak's decision to turn down Lebron's proposal. The advertising policy that allegedly violated the First Amendment originated with a predecessor to Amtrak, the wholly private Pennsylvania Railroad Company. A prior lease by that company prohibited "any advertisement which in the judgement of Licensor is or might be deemed to be slanderous, libelous, unlawful, immoral, or offensive to good taste . . . " Amtrak continued this policy after it took over. The specific decision to disapprove Lebron's advertising was made by Amtrak's Vice President of Real Estate and Operations Development, who was not appointed by the president, nor by the president appointed board.

Lebron nevertheless contends that the board, through its approval of the advertising policy, controlled the adverse action against him. Justice O'Conner wrote, "it assumes that the board members sit as public officials and not as business directors, thus begging the question whether Amtrak is a Government agency or a private entity." The particular lease, which permitted Amtrak to disallow Lebron's billboard was neither reviewed, nor approved, directly by the board. The Amtrak Board approved only one contract between Amtrak and Transportation Displays Incorporated, the billboard leasing company that served as Amtrak's agent. In this case, no evidence suggested that the government controlled, coerced, or influenced Amtrak's decision, made according to corporate policy and private business judgment, to not approve of the advertisement proposed by Lebron.

Justice O'Conner wrote, "the Court of Appeals properly applied our precedents and did not impute Amtrak's decision to the Government. I would affirm on this basis and not reverse the Court of Appeals based on a theory that is foreign to this case. Respectfully, I dissent."