A story in the sports section of yesterday's NY Times quoted yours truly as stating that the New York Yankees, as a private organization, act lawfully when they use chains to block the main aisles in the lower portion of the stadium to produce a proper sense of decorum during the playing of the national anthem and (during the seventh inning stretch) God Bless America. The only plausible legal impediment to this tactic would be the First Amendment, which only bars the government. (I didn't say this was a good idea, mind you, just that it wasn't illegal.)
A couple of readers of the story emailed to ask me whether there might not be state action either because Yankee Stadium is publicly owned (and leased to the Yankees). My buddy from summer softball games Marc Edelman (aka "Sports Judge") called my attention to the 1978 ruling in Ludtke v. Kuhn, 461 F. Supp. 86 (SDNY), in which Judge Mottley ruled that the Yankees ARE a state actor, relying on the Supreme Court's 1961 opinion in Burton v. Wilmington Parking Authority. In Burton, the Supreme Court held that a privately run coffee shop's acts of race discrimination were attributable to the state where the coffee shop was located within a publicly owned and operated facility, and where the public entity had in effect jointly participated in running the coffee shop.
Regardless of whether Judge Mottley interpreted Burton rightly or wrongly in concluding that the Yankees were a state actor in 1978, Burton has been so effectively gutted by subsequent Supreme Court cases like American Manufacturers Mutual Insurance Co. v. Sullivan, that the "intertwining" theory of Burton cannot be successfully invoked anymore. Moreover, the decision of a single district judge sets no precedent anyway, so that the Ludtke decision was never binding precedent.
Nonetheless, Ludtke could in theory be binding as a matter of issue preclusion (or collateral estoppel for you oldtimers). The Yankees were a party to Ludtke, and thus could, in principle, be estopped from relitigating their status as a state actor in a suit against them by a current fan claiming a First Amendment violation. However, such a case would be an instance of non-mutual offensive issue preclusion, and while that is permitted under the Supreme Court's ruling in Parklane Hosiery Co. v. Shore, it is a doctrine of discretion: It would be a very unwise (indeed abusive) use of a trial court's discretion to estop the Yankees from relitigating a three-decade-old determination that they are a state actor, where the governing law has changed and today's plaintiff is a stranger to the original litigation.
Okay, now that I've taken all of the fun out of baseball, I'll go back to grading federal courts exams so my students can get their degrees on time.