holding "that the presence of some commercial activity does not change the standard of first amendment review" where the organization engaged in such activity had a clear political purpose (citing In re Grand Jury Proceeding, 842 F.2d 1229, 1235 (11th Cir. 1988))
How later courts described this case
- holding "that the presence of some commercial activity does not change the standard of first amendment review" where the organization engaged in such activity had a clear political purpose (citing In re Grand Jury Proceeding, 842 F.2d 1229, 1235 (11th Cir. 1988))
- noting that federal appellate courts uniformly hold that trash placed for collection in a location accessible to the public is without Fourth Amendment protection
- noting that an agency relationship may arise “if the government coerces, dominates or directs the actions of a private person”
- “While ... political speech ... is protected by the first amendment, the same is not true of speech encouraging or facilitating illegal activity.”
Written by the judges who cited it.
The opinion
McKAY, Circuit Judge,
concurring in part and dissenting in part:
I agree wholly with the majority opinion with one exception: whether Ms. Adams was acting as a government agent when she took documents from the plaintiffs and gave them to the government. I cannot agree that we must remand that determination to the trier of fact. I believe that the evidence fully supports a directed verdict in favor of plaintiffs on the issue of Ms. Adams’ agency.
All of the cases cited by the majority where an “agency” determination is made are criminal cases in which the court decides the issue on a motion to suppress. 1 In all of the section 1983 cases I can find, the court has made the determination but has never discussed the allocation of function between judge and jury where credibil *808 ity is at issue. 2 Here, the uncontested facts seem to me to establish as a matter of law that the relationship had passed well over the threshold required to make Ms. Adams a government agent for section 1983 purposes. In any event, if the court in a criminal suppression hearing can make the determination of agency for purposes of determining whether the evidence was seized in violation of the Fourth Amendment, it would seem illogical to allocate that function to the jury in a section 1983 civil case where the legality of the search is at issue.
The majority states that the defendants have offered explanations to refute the apparent meaning of [some of the testimony].” Maj'. op. at 798. The defendants may put a different gloss on the testimony, but there are apparently no subsidiary or historical facts in dispute that would call for a jury determination. When the facts are not at issue — but merely whether these facts amount to the legal determination that one is an agent — such determination is properly made by the court.
I would hold as a matter of law that Ms. Adams was an agent, for Fourth Amendment purposes, at the time she took the documents. Because in my view it is abundantly clear that Ms. Adams was acting as a government agent, the defendants are not entitled to qualified immunity on that issue.
. See United States v. Miller, 688 F.2d 652 (9th Cir.1982); United States v. Walther, 652 F.2d 788 (9th Cir.1981); United States v. Snowadski, 723 F.2d 1427 (9th Cir.1984); United States v. Lamport, 787 F.2d 474 (10th Cir.1986); United States v. Black, 767 F.2d 1334 (9th Cir.1985); United States v. Veatch, 674 F.2d 1217, 1221-22 (9th Cir.1981); United States v. Gumerlock, 590 F.2d 794 (9th Cir.1979).
. See Creamer v. Porter, 754 F.2d 1311 (5th Cir.1985) (issue for the court whether officer was a mere "bystander" or participated in search); Wagner v. Metropolitan Nashville Airport Auth., 772 F.2d 227 (6th Cir.1985) (issue for the court whether action taken by private individuals may be “under color of State law” when significant state involvement attaches to the action); King v. Massarweh, 782 F.2d 825 (9th Cir.1986) (issue for the court whether landlord was a “joint actor” of the state when he called police in to search plaintiff’s apartment).