concurring in part and dissenting in part:
The majority concludes that Counts III and IV of the plaintiffs complaint necessarily depend on the resolution of a substantial question of federal law, and thus that federal question jurisdiction exists over those counts. I respectfully disagree. First, I conclude that Dixon’s wrongful discharge and retaliatory discharge claims do not depend on the resolution of any question of federal law. Second, even if I were to conclude that those claims do depend on the resolution of a question of federal law, that question is not a substantial one. For both of these independently sufficient reasons, I would hold that the district court lacked jurisdiction over Counts III and IV. I concur in the majority’s opinion insofar as it holds that Count I of the complaint raises an insubstantial question of federal law. Because none of the counts give rise to federal question jurisdiction, the district court lacked any basis for exercising supplemental jurisdiction over the state-law counts. Accordingly, the entire complaint should be dismissed for lack of jurisdiction. Because I believe we lack jurisdiction, I do not reach the merits of Dixon’s claims.
I.
The majority concludes that the district court had federal question jurisdiction in this case, holding that Count III “necessarily depends upon the resolution of a question of federal law.” Ante at 257-58. In reaching this conclusion, the majority notes that in order to prevail Dixon must establish that he “exercised a political right or privilege that is ‘guaranteed to every citizen by the Constitution and laws of the United States Ante at 257. I agree. I also agree with the majority’s observation that causation is not in dispute, and that “[t]he only question is *266whether the First Amendment protects Dixon’s right to display the Confederate flag as he chose to display it.” Ante at 257. From this, the majority concludes that Dixon’s claim depends on the resolution of a question of federal law.
At first blush, this conclusion appears to be correct. If, as I agree is the case, the only real question here is whether Dixon was exercising his First Amendment rights when he displayed the flag in the manner that he did, then it might seem obvious that the outcome of this case depends on the resolution of a question of federal law.1 However, in the circumstances of this case, the question of “Was Dixon exercising his First Amendment rights?” is not a question that can be answered under federal law. This is because, under federal law, one cannot determine whether a specific expressive activity is an “exercise of First Amendment rights” without reference to a state actor who is trying to suppress that expressive activity. Here, of course, no state actor was involved in Dixon’s discharge. Accordingly, there is no body of federal law that addresses the question of whether Dixon was exercising his First Amendment rights. Rather, the concept of the “exercise of First Amendment rights” in the context of solely private action is a concept that has been created by the South Carolina legislature. It is a state law concept that does not exist under federal law. Undoubtedly, the South Carolina legislature intended that federal law interpreting the First Amendment would be used, by way of analogy, to determine when an individual was, in a manner of speaking, exercising his First Amendment rights in the private employment context. But there is a critical difference between incorporating a question of federal law into a state statute and using federal law as a reference or analogy for interpreting a purely state law cause of action.2 Here, South Carolina has done the latter, and thus there is no federal question jurisdiction under this statute.
A.
Colloquially, we often speak of exercising our federal constitutional rights, for example, exercising our right to free speech. In the abstract, though, it is impossible to say whether a particular form of expression, like displaying the Confederate flag, is or is not an exercise of First Amendment rights. The scope and nature of First Amendment rights depends on the circumstances of the expression in question and — most critically for present purposes — the nature of the state’s attempt to restrict it. See Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 799-800, 105 S.Ct. 3439, 87 L.Ed.2d 567 (1985) (explaining that the types of restrictions the state may place on speech depend on whether the speaker wishes to speak in a public forum, a limited purpose public forum, or a nonpublic forum). The First Amendment does not provide individuals with a generalized right to express themselves without interference from others — it only places certain limits on attempts by the state to interfere *267with expressive activity. See CBS, Inc. v. Democratic Nat’l Comm., 412 U.S. 94, 114, 93 S.Ct. 2080, 36 L.Ed.2d 772 (1973) (“That ‘Congress shall make no law ... abridging the freedom of speech, or of the press’ is a restraint on government action, not that of private persons.”). Moreover, the First Amendment only prohibits the state from interfering with speech in certain ways, and in certain contexts. Unless we know how the state is attempting to restrict an expressive activity, it is impossible to say whether the individual engaged in that expressive activity is “exercising his First Amendment rights.”
I will illustrate by way of example. The majority claims that if Dixon were to display the Confederate flag during a pro-flag rally on the grounds of the state capítol, that action would clearly constitute an exercise of his First Amendment rights. Ante at 262. I disagree — flag-waving at a pro-flag rally on state capítol grounds does not always constitute an exercise of First Amendment rights. The majority’s example activity — no doubt chosen because it seems a paradigmatic example of exercising one’s First Amendment rights — could be prohibited by the state in some circumstances. For example, the state could prohibit a pro-flag rally at 2 a.m. pursuant to a uniformly-applied policy against assembly on capítol grounds between midnight and 6 a.m. See Thomas v. Chi. Park Dist., 534 U.S. 316, 322, 122 S.Ct. 775, 151 L.Ed.2d 783 (2001) (state may impose “content-neutral time, place, and manner regulation of the use of a public forum”). Similarly, the state could prohibit a pro-flag rally on the capítol grounds planned for a given day in light of a credible bomb threat associated with that rally. See Thomas v. Collins, 323 U.S. 516, 532, 65 S.Ct. 315, 89 L.Ed. 430 (1945) (state may impose a prior restraint on speech “if grave and impending public danger requires this”). In some circumstances, the government could even fire an employee for participating in an otherwise constitutionally-protected pro-flag rally on the capítol grounds. Imagine that a pro-flag citizen group had brought a lawsuit challenging the process by which the South Carolina legislature decided to remove the Confederate flag from atop the statehouse, and planned a rally to publicize the case and their cause. A law clerk to the judge assigned the case wishes to attend the pro-flag rally, as he strongly supports flying the flag atop the capítol. Surely the judge could, consistent with the First Amendment, prohibit the clerk from attending the pro-flag rally in order to prevent any appearance of judicial bias or impropriety, and in fact could fire the clerk if he disobeyed and attended the rally anyway. See Judicial Conference of the United States, Code of Conduct for Judicial Employees, Canon 2 (1995) available at <http://www.uscourts.gov/guide/vol2/ ch2a.html> (“A judicial employee should not engage in any activities that would put into question the propriety of the judicial employee’s conduct in carrying out the duties of the office.”); id. Canon 5.B (“[A] judicial employee! ] may engage in nonpartisan political activity only if such activity does not tend to reflect adversely on the dignity or impartiality of the court or office and does not interfere with the proper performance of official duties.”). A complaint from the clerk that his discharge violated the First Amendment, because he was exercising his First Amendment rights, would almost assuredly fall on deaf ears.
As these examples hopefully make clear, even for conduct that seems to typify freedom of expression, the question of whether that conduct constitutes the exercise of one’s First Amendment rights cannot be answered without knowing the manner and justification for state restrictions on that *268speech. The majority concedes that it is “difficult” to determine, in the abstract, when an individual is exercising his First Amendment rights. Ante at 258. Here, I think, lies the heart of our disagreement. I do not find this task merely difficult; I find it impossible — at least under federal law.
The majority states that “there can be no doubt” that defining the exercise of First Amendment rights in the abstract “is precisely the type of analysis that the South Carolina legislature has intended courts to undertake.” Ante at 258. But whether one concludes that the South Carolina legislature intended courts to determine the exercise of First Amendment rights by defining those rights in the abstract, as the majority asserts, or by treating the private employer as if it were a state actor, as I have asserted, in neither case is the court determining a question of federal law. Just as there is no body of federal law that defines the exercise of First Amendment rights as against a private employer, there is no body of federal law defining it in the abstract.
If the majority’s interpretation of the South Carolina statute is correct — that is, if the statute asks courts to determine the exercise of First Amendment rights in the abstract, rather than by treating the private employer as a state actor — then the statute has less to do with federal law than under my interpretation. The majority argues that under Culler, the analysis of whether the plaintiff was exercising a First Amendment right is simply “whether the employee has articulated a political opinion or exercised a political right.” Ante at 258. Under this approach, the phrase “exercise of First Amendment rights” is treated as a shorthand reference to political expression. If this is how the South Carolina courts interpret the statute, then its reach is broad indeed — much broader than the protection afforded public employees by the First Amendment. Applying this test to the case at hand, it is hard to see why the majority concludes that Dixon was not exercising a First Amendment right. After all, his display of the Confederate flag was intended by him, and understood by others, as the articulation of a political opinion. His employer asked that he limit his advocacy of his political opinion about the Confederate flag to outside the workplace. He refused, and he was fired.3
Because no state actor was involved in Dixon’s discharge, there is no body of federal law that answers the question of whether Dixon was exercising his First Amendment rights in this case. The question embedded in the South Carolina statute — when is an individual exercising his First Amendment rights as against his private employer — is simply not a question of federal law. Because Dixon’s claims do not depend on the resolution of a “question of federal law,” these claims do not give rise to federal jurisdiction.
B.
Thus far, I have argued that the concept of the “exercise of First Amendment rights,” in the absence of state action, is a concept that has no content under federal law. It might seem to follow that this part of the South Carolina statute, which regulates private action as against the exercise of First Amendment rights, is simply a nullity. After all, if there is no such thing, under federal law, as the exercise of First Amendment rights absent state action, *269then one could argue that this part of the statute can have no meaning, at least as applied to private actors. This was the district court’s conclusion. It granted summary judgment to Coburg, explaining that under the federal constitution, “for there to be a violation of free speech, there must be state action.... [Tjhere was no state action in this case. That being the case, ... the defendant had an absolute right to discharge the plaintiff.” I agree that the district court’s interpretation is one plausible construction of the statute, albeit one that renders the statute a nullity as against private actors. However, there is another way to interpret the statute that does give it meaning.
While the concept of the “exercise of First Amendment rights” absent state action has no content under federal law, it is an entirely different question whether it might have some content under state law. Undoubtedly, the South Carolina legislature intended that this part of the statute would have some meaning. I can conceive of one way to interpret the statute that does give it meaning. To determine whether the South Carolina private employer has acted “because of [an employee’s] ... exercise of’ his First Amendment free speech rights, a court should ask whether the private employer’s actions would have violated the First Amendment if it were a state actor. If so, then one can say, in a manner of speaking, that the private actor has discharged the employee because of the employee’s exercise of his First Amendment rights.4 Critically, this *270concept — that a private employee can be “exercising First Amendment rights” as against his private employer — is a state law concept, one that the South Carolina legislature has created, not incorporated from federal law. It could not have incorporated this concept from federal law, because the concept does not exist under federal law. It is a new creation of the South Carolina legislature and is purely a creature of state law.
The majority argues that even if it were to adopt this approach to the statute, “a federal issue would still control — whether the First Amendment protects the right of a state employee to display the Confederate flag in the manner and circumstances in which Dixon displayed the flag.” Ante at 259. I agree with the majority that, even under my approach to the statute, principles of federal First Amendment law still control the outcome of the case. This does not mean, however, that the statute has incorporated a question of federal law. The difference, I submit, is between the incorporation of a federal question into a state statute and the mere use of federal law principles, by way of analogy, to resolve an otherwise purely state-law question. Here, the South Carolina statute does not incorporate a federal question, because the exercise of First Amendment rights absent state action is a concept alien to federal law. Instead, the South Carolina statute has created a new state-law concept — the exercise of First Amendment rights outside the context of state action-— which is given content by looking to federal First Amendment law, in the context of state action, by way of analogy.
The role of federal law in this case is similar to the use of federal law in cases where state courts interpret purely state-law statutes in light of similar federal statutes. For example, some state courts have interpreted state anti-discrimination laws in accordance with the principles of federal anti-discrimination law. See, e.g., Barefoot v. Sundale Nursing Home, 193 W.Va. 475, 457 S.E.2d 152, 159 (1995) (“We have consistently held that cases brought under the West Virginia Human Rights Act, W.Va.Code, 5-11-1, et seq., are governed by the same analytical framework and structures developed under Title VII, at least where our statute’s language does not direct otherwise.” (citations omitted)). While cases involving these state laws are sometimes resolved by considering and analyzing the analogous federal law, such cases do not depend on the resolution of a question of federal law that was incorporated into the statute. As one district court in this circuit has explained, “[t]he situation ... where a plaintiff asserts a claim for recovery under a state statute that is modeled after federal law[ ] should be distinguished from the situation in which a plaintiff asserts a claim that incorporates a federal statute or standard as an element of recovery under state law.” Pendergraph v. Crown Honda-Volvo, LLC, 104 F.Supp.2d 586, 589 (M.D.N.C.1999). The former case, where the court looks to federal law simply for a framework to decide a state law question, does not give rise to federal question jurisdiction. See id. (“[T]he mere fact that a local ordinance is construed in accordance with a federal statute does not give rise to federal question jurisdiction.... Clearly, the state or local government’s decision to look to federal law for guidance in interpreting state law does not federalize the cause of action.”); Mixer v. M.K-Fergu*271son Co., 17 F.Supp.2d 569, 572 (S.D.W.Va.1998) (holding that claim under West Virginia Human Rights Act did not present a federal question). In this case, the fact that a state law claim requires analysis of federal law and depends on resolving an issue of federal law does not mean that the state claim has incorporated a question of federal law. Federal law simply provides the analytical framework for deciding a purely state law question.
Accordingly, Dixon’s claims that rely on the South Carolina statute (in combination with the public policy exception to the at-will doctrine) do not “depend[] on the resolution of a ... question of federal law.” Mulcahey v. Columbia Organic Chems. Co., 29 F.3d 148, 151 (4th Cir.1994). The question of whether Dixon was exercising his First Amendment rights in this case cannot be answered by federal law because there is no state action against which to measure First Amendment protections. However, the question can be answered under state law — specifically, under the state law concept created by the South Carolina legislature that a private employee can be said to be exercising his First Amendment rights, for purposes of this state statute, when he is fired under circumstances which, if his private employer were a state actor, would violate the First Amendment. Because Dixon’s claims in Counts III and IV do not depend on the resolution of a question of federal law, those claims do not give rise to federal question jurisdiction.
II.
Even assuming for the sake of argument that Counts III and IV do depend on the resolution of a question of federal law, I nonetheless believe that such a question is not substantial. This provides another, independently sufficient reason for my conclusion that the district court lacked jurisdiction in this case.
The majority first decides that Dixon’s claim “necessarily depends upon the resolution of a question of federal law.” Ante at 257. Assuming that these claims raise a federal question, I agree with the majority that Dixon’s claims here necessarily depend on the resolution of that question. The Supreme Court has made clear, however, that federal question jurisdiction is not always present in cases involving a state law that incorporates a federal question as an element of the state claim, even when resolution of that federal question is the central issue in the case. In Merrell Dow Pharmaceuticals Inc. v. Thompson, 478 U.S. 804, 106 S.Ct. 3229, 92 L.Ed.2d 650 (1986), the Supreme Court noted that “the central issue presented in [Franchise Tax Board of the State of California v. Construction Laborers Vacation Trust for Southern California, 463 U.S. 1, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983) ] turned on the meaning of the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001 et seq. (1982 ed. and Supp. Ill), but we nevertheless concluded that federal jurisdiction was lacking.” Merrell Dow, 478 U.S. at 809, 106 S.Ct. 3229. Noting, among other things, that no free-standing federal cause of action was available to the plaintiff, the Court concluded that “the presence of a claimed violation of the statute as an element of the state cause of action is insufficiently ‘substantial’ to confer federal-question jurisdiction.” Id. at 814, 106 S.Ct. 3229.
The determination of whether the federal question in this case is “substantial” “should be informed by a sensitive judgment about whether the existence of federal judicial power is both appropriate and pragmatic.” Ormet Corp. v. Ohio Power Co., 98 F.3d 799, 806 (4th Cir.1996). “At bottom, we must determine whether the *272dispute is one that Congress intended federal courts to resolve, taking into account the historical reasons for establishing federal courts.” Id. (citing Merrell Dow, 478 U.S. at 826-27, 106 S.Ct. 3229 (Brennan, J., dissenting)). Those reasons for establishing the federal courts include interests in uniform national interpretation of the law, Merrell Dow, 478 U.S. at 826, 106 S.Ct. 3229 (Brennan, J. dissenting), and the possibility of greater expertise of federal courts in questions of federal law, id. at 826-27, 106 S.Ct. 3229. In addition, the majority in Merrell Dow considered whether the plaintiff had a free-standing cause of action under the federal law in question. Id. at 813-14, 106 S.Ct. 3229.5
Applying these pragmatic principles to the federal question arguably implicated in this case, I conclude that they all point toward finding that the federal question, if any, is not substantial. As for national uniformity, the particular federal law question raised in this case— when is a private employee exercising his First Amendment rights as against his private employer — is limited to the specific context of this type of state statute. Because the First Amendment does not apply to private employers, determining when a private employer can be said to have fired an employee because of his exercise of his First Amendment rights only has implications for other cases brought under this South Carolina statute (or an analogous state statute), not for First Amendment cases generally. As for the relative expertise of federal and state courts, the First Amendment is an area of federal law in which state courts are well versed. State courts, as courts of general jurisdiction, must routinely decide issues that implicate the First Amendment, for example when the First Amendment is asserted as a defense to a state claim. See, e.g., Goodwin v. Kennedy, 347 S.C. 30, 552 S.E.2d 319, 324-25 (2001) (discussing First Amendment principles that limit state libel actions); Parker v. Evening Post Pub. Co., 317 S.C. 236, 452 S.E.2d 640, 644 (1994) (same).
In addition, the majority in Merrell Dow placed great emphasis on the fact that no free-standing federal cause of action was available to the plaintiff for the federal statute that had been incorporated into the state cause of action at issue. The court explained that:
The significance of the necessary assumption that there is no federal private cause of action thus cannot be overstated. For the ultimate import of such a conclusion, as we have repeatedly emphasized, is that it would flout congressional intent to provide a private federal *273remedy for the violation of the federal statute. We think it would similarly flout, or at least undermine, congressional intent to conclude that the federal courts might nevertheless exercise federal-question jurisdiction and provide remedies for violations of that federal statute solely because the violation of the federal statute is said to be a “rebut-table presumption” or a “proximate cause” under state law, rather than a federal action under federal law.
Merrell Dow, 478 U.S. at 812, 106 S.Ct. 3229 (footnote omitted). In this case, of course, Dixon has no federal cause of action against Coburg under the First Amendment or § 1983, because Coburg is not a state actor. Thus, we are presented with a case where no free-standing federal cause of action exists for the federal right asserted here (if it is a federal right at all), a factor whose significance “cannot be overstated.” Id.6
Considering all of the factors in this case, I cannot conclude that this case falls within that “small class of cases where, even though the cause of action is not created by federal law, the ease’s resolution depends on resolution of a federal question sufficiently substantial to arise under federal law within the meaning of 28 U.S.C. § 1331.” Ormet, 98 F.3d at 806. The South Carolina courts, like all state courts, have much experience interpreting and applying the First Amendment. Moreover, even assuming that the statute does incorporate a question of federal First Amendment law, the South Carolina statute asks the court to apply those First Amendment principles in an entirely novel context — as against a private employer. The majority makes reference to “First Amendment issues ... of monumental importance” in this case. Ante at 260. On the contrary, I would argue that there are no First Amendment concerns at stake, for the First Amendment has nothing to say about the acts of private employers. Rather, the concern at stake here is free speech rights of private employees as against their private employers, a concern created by the South Carolina legislature but not present in the United States Constitution. Given this unique creation of South Carolina law, there is no need for national uniformity in this area, and South Carolina state courts are better equipped to interpret and apply this statute. In sum, I would hold that even if the First Amendment principles implicated by the South Carolina statute can be said to present a “question of federal law,” that question is not “sufficiently substantial to arise under federal law within the meaning of 28 U.S.C. § 1331.” Ormet, 98 F.3d at 806.
The majority holds that the federal issue here is substantial not only because of the First Amendment issues implicated, but also “because of a possible conflict with our Title VII jurisprudence.” Ante at 261. *274Any conflict with Title VII, however, would arise as a federal defense to the plaintiffs claims, and as such is insufficient to confer federal question jurisdiction. See Merrell Dow, 478 U.S. at 808, 106 S.Ct. 3229 (“A defense that raises a federal question is inadequate to confer federal jurisdiction.” (citation omitted)). The majority does not claim that possible conflict with Title VII is itself sufficient to provide federal question jurisdiction, but rather asserts that the existence of a significant federal defense is relevant to whether the federal question embedded in the state statute is substantial. However, the substantiality vel non of a question of federal law embedded in a state cause of action is not affected by other factors, such as a possible federal defense, that are unrelated to the federal question itself. Certainly the Court in Merrell Dow, which repeated the well-established principle that federal defenses are inadequate to confer federal jurisdiction, id., made no suggestion that federal defenses might nonetheless be relevant to the substantiality of the question of federal law presented in the state cause of action. Nor can I find any decision in which a court considered the existence of a possible federal defense when determining the substantiality of a question of federal law. Here, we are simply asked to determine whether the First Amendment issues implicated by the South Carolina statute are sufficiently substantial to give rise to federal question jurisdiction. The existence of a Title VII defense is irrelevant to that determination.
III.
In sum, I conclude that the First Amendment principles implicated by Counts III and IV of Dixon’s complaint do not constitute a question of federal law. In the alternative, even if Counts III and IV do depend on the resolution of a question of federal law, that question is not sufficiently substantial to give rise to federal jurisdiction. Finally, I conclude that the existence of a federal defense to these claims has no bearing on whether any question of federal law presented is substantial. I agree with the majority that the federal question presented in Count I is insubstantial, and concur in the judgment insofar as it dismisses Count I for lack of jurisdiction. As to the remaining counts, I would reverse the district court’s judgment and remand for dismissal for lack of federal jurisdiction.
. Indeed, as the majority points out, ante at 258, Dixon believes that the First Amendment issues in this case form an element of his state cause of action. Of course, a party’s concession cannot provide federal question jurisdiction where it would otherwise be lacking. See Mescalero Apache Tribe v. New Mexico, 131 F.3d 1379, 1386 (10th Cir.1997).
. Of course, even in cases where the state statute does incorporate a question of federal law, federal question jurisdiction is often not present. See Merrell Dow Pharmaceuticals Inc. v. Thompson, 478 U.S. 804, 809, 106 S.Ct. 3229, 92 L.Ed.2d 650 (1986); infra Part II. The point here is that federal question jurisdiction is never present when federal law is used merely by analogy.
. As to whether Dixon “exercised a political right,” I am not sure what this phrase might mean except the exercise of his rights under the First Amendment, a concept that I have already argued is, in the absence of state action, without content under federal law.
. The majority is skeptical of this approach to the statute, contending that it has no basis in the statute or South Carolina common law. While I concede that this interpretation is not compelled by the text of the statute, I submit that it is the best interpretation because it is (1) consistent with the text of the statute and (2) the only way, as far as I can tell, to give the statute any force. By making it a crime for a private employer to discharge an employee for the exercise of his First Amendment rights (among other things), the South Carolina legislature intended, I believe, to afford the same protection to private employees as against their private employers as is enjoyed by public employees against the state. (There are reasons to doubt whether doing so is wise or even, in some circumstances, constitutional, but those issues are not before the court. See Julian N. Eule & Jonathan D. Varat, Transporting First Amendment Norms to the Private Sector: With Every Wish There Comes a Curse, 45 U.C.L.A. L.Rev. 1537, 1605-32 (1998) (suggesting that applying First Amendment-type restrictions to private actors may, in certain circumstances, violate those actors’ First Amendment freedom of expression and association rights).) By using the phrase "exercise of [the employee’s First Amendment] rights,” it seems that the South Carolina legislature intended to protect private employees’ rights to express themselves on political and other important matters in the private workplace. And by making reference to political rights protected under the United States Constitution rather than simply using a phrase like "expressing political beliefs,” the South Carolina legislature clearly had in mind the body of federal caselaw that has developed related to First Amendment restrictions on state action. I have argued above that it is impossible to say whether a given act of expression is an exercise of First Amendment rights without knowing the context of the speech and the manner of the government's attempt to restrict it. Accordingly, the only way that I can conceive to apply, to private actors, the body of federal caselaw governing First Amendment protections against state action, is to treat the private actor as if it were a state actor.
Moreover, while this approach is not laid out explicitly in the statute or in South Carolina caselaw (which is relatively undeveloped in this area at this time), the approach does find support in caselaw from Pennsylvania and Connecticut interpreting analogous state statutes. To determine whether a private employee was discharged by a private employer for “exercising a First Amendment right,” courts have relied on federal caselaw related to the discharge of public employees. See Novosel v. Nationwide Ins. Co., 721 F.2d 894, 898-901 (3d Cir.1983) (interpreting Pennsylvania law); Winik-Nystrup v. Mfrs. Life Ins. Co., 8 F.Supp.2d 157, 160 (D.Conn. *2701998) (interpreting Connecticut law). In essence, these courts ask whether, if the private employer had been a state actor, the employee’s discharge would have violated the First Amendment. See id.
. The majority, in its discussion of whether this federal question is '‘substantial,” quotes a statement from Michigan v. Long, 463 U.S. 1032, 1040-41, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983), to the effect that the Supreme Court has jurisdiction to review a "state court decision [that] fairly appears to rest primarily on federal law, or to be interwoven with the federal law.” Ante at 260 n. 4. This standard relates to the scope of the Supreme Court’s powers to review state court judgments, specifically regarding whether the state court decision rests on an adequate and independent state law ground. It does not, I submit, have any bearing on whether a question of federal law embedded in a state cause of action is substantial so as to give rise to original jurisdiction in the district courts. The two concepts are quite different, and Long's statement about the former does not assist in determining the latter. The Supreme Court routinely reviews state court decisions containing federal issues that do not give rise to federal question jurisdiction in the district courts. For example, the existence of a federal defense in a state cause of action does not give rise to original jurisdiction in the district courts, but does provide a basis for Supreme Court review of a state court judgment. See, e.g., New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964) (reviewing First Amendment defense to state libel action).
. Indeed, given the tone of the language in Merrell Dow, one could be excused for concluding that Merrell Dow had established a categorical rule that when there is no freestanding federal cause of action, federal question jurisdiction never exists over a state cause of action that incorporates that federal standard. The Supreme Court’s conclusion in Merrell Dow makes this factor sound dis-positive: “We conclude that a complaint alleging a violation of a federal statute as an element of a state cause of action, when Congress has determined that there should be no private, federal cause of action for the violation, does not state a claim arising under the Constitution, laws, or treaties of the United States.” Merrell Dow, 478 U.S. at 817, 106 S.Ct. 3229 (quotations and citation omitted). Nonetheless, this court in Ormet concluded that "[t]here is a small class of cases where, even though the cause of action is not created by federal law, the case’s resolution depends on resolution of a federal question sufficiently substantial to arise under federal law within the meaning of 28 U.S.C. § 1331.” Ormet, 98 F.3d at 806.