Hurley v. Irish-American Gay, Lesbian And Bisexual Group Of Boston

515 U.S. 557

Case Year: 1995

Case Ruling: 9-0, Reversed and Remanded

Opinion Justice: Souter

FACTS

Since 1947, the city of Boston has authorized the South Boston Allied War Veterans Council (a private organization), to organize the St. Patrick's Day-Evacuation Day Parade. In 1992, the council received an application from the Irish-American Gay, Lesbian and Bisexual Group of Boston (GLIB) to march in the parade. This group had formed to express the pride of its members in their Irish heritage; to show that the Irish community includes gays, lesbians, and bisexuals; and to support like individuals who wished to march in New York's St. Patrick's Day Parade. The Council denied the application, but GLIB obtained a state court order allowing the group to participate. It marched "uneventfully" among the 10,000 other participants and approximately 750,000 spectators.

When GLIB's application was rejected again in 1993, the organization filed suit against the council, parade organizer John J. "Wacko" Hurley, and the city of Boston. In its suit, GLIB alleged that denial of the application to march violated, among other things, a Massachusetts law prohibiting "any distinction, discrimination or restriction on account of ... sexual orientation ... relative to the admission of any person to, or treatment in any place of public accommodation, resort or amusement." A public accommodation, according to the law, includes "any place ... which is open to and accepts or solicits the patronage of the general public and, without limiting the generality of this definition, whether or not it be ... a boardwalk or other public highway [or] ... a place of public amusement, recreation, sport, exercise or entertainment."

In response, the council argued that the parade was a form of expression--in this instance, an expression of its commitment to "religious and social values." Forcing the council to include GLIB would be to force it to impart a message that it did not want to convey, in violation of its First Amendment rights.

The state trial court held for GLIB. In its opinion, the court found that the parade fell within the state law's definition of a public accommodation. In so holding, it used the council's own logic against it. The court stated that, although the council can select participants, it had no written criteria for admission procedures. Indeed, "it had occasionally admitted groups who simply showed up at the parade without having submitted an application, and it did 'not generally inquire into the specific messages or views of each applicant.'" This proved, in the eyes of the court, that the parade was not "private" (in the sense of being exclusive); rather, "the lack of genuine selectivity in choosing participants and sponsors demonstrates that the Parade is a public event." The court used the same logic to reject the council's First Amendment claim: "Given the [council's] lack of selectivity in choosing participants and failure to circumscribe the marchers' message," it is "impossible to discern any specific expressive purpose entitling the Parade to protection under the First Amendment." The court concluded that the parade is "not an exercise of [the council's] constitutionally protected right of expressive association," but instead "an open recreational event that is subject to the public accommodations law." The Supreme Judicial Court of Massachusetts affirmed the trial court's ruling. It agreed with the trial court's findings that "GLIB was excluded from the parade based on the sexual orientation of its members, that it was impossible to detect an expressive purpose in the parade, that there was no state action, and that the parade was a public accommodation within the meaning" of the state law.

JUSTICE SOUTER DELIVERED THE OPINION OF THE COURT.

The issue in this case is whether Massachusetts may require private citizens who organize a parade to include among the marchers a group imparting a message the organizers do not wish to convey. We hold that such a mandate violates the First Amendment....

If there were no reason for a group of people to march from here to there except to reach a destination, they could make the trip without expressing any message beyond the fact of the march itself. Some people might call such a procession a parade, but it would not be much of one. Real "[p]arades are public dramas of social relations, and in them performers define who can be a social actor and what subjects and ideas are available for communication and consideration."... Hence, we use the word "parade" to indicate marchers who are making some sort of collective point, not just to each other but to bystanders along the way. Indeed a parade's dependence on watchers is so extreme that nowadays..."if a parade or demonstration receives no media coverage, it may as well not have happened."... Parades are thus a form of expression, not just motion, and the inherent expressiveness of marching to make a point explains our cases involving protest marches.... [I]n Edwards v. South Carolina (1963), where petitioners had joined in a march of protest and pride, carrying placards and singing The Star Spangled Banner, we held that the activities "reflect an exercise of these basic constitutional rights in their most pristine and classic form."...

The protected expression that inheres in a parade is not limited to its banners and songs, however, for the Constitution looks beyond written or spoken words as mediums of expression. Noting that "[s]ymbolism is a primitive but effective way of communicating ideas," West Virginia Bd. of Ed. v. Barnette (1943), our cases have recognized that the First Amendment shields such acts as saluting a flag (and refusing to do so), ... wearing an arm band to protest a war, Tinker v. Des Moines Independent Community School Dist. (1969), displaying a red flag, Stromberg v. California (1931), and even "[m]arching, walking or parading" in uniforms displaying the swastika, National Socialist Party of America v. Skokie (1977). As some of these examples show, a narrow, succinctly articulable message is not a condition of constitutional protection, which if confined to expressions conveying a "particularized message," ... would never reach the unquestionably shielded painting of Jackson Pollock, music of Arnold Schnberg, or Jabberwocky verse of Lewis Carroll.

Not many marches, then, are beyond the realm of expressive parades, and the South Boston celebration is not one of them. Spectators line the streets; people march in costumes and uniforms, carrying flags and banners with all sorts of messages (e.g., "England get out of Ireland," "Say no to drugs"); marching bands and pipers play, floats are pulled along, and the whole show is broadcast over Boston television.... To be sure, we agree with the state courts that in spite of excluding some applicants, the Council is rather lenient in admitting participants. But a private speaker does not forfeit constitutional protection simply by combining multifarious voices, or by failing to edit their themes to isolate an exact message as the exclusive subject matter of the speech. Nor, under our precedent, does First Amendment protection require a speaker to generate, as an original matter, each item featured in the communication. Cable operators, for example, are engaged in protected speech activities even when they only select programming originally produced by others.... The selection of contingents to make a parade is entitled to similar protection.

Respondents' participation as a unit in the parade was equally expressive. GLIB was formed for the very purpose of marching in it, as the trial court found, in order to celebrate its members' identity as openly gay, lesbian, and bisexual descendants of the Irish immigrants, to show that there are such individuals in the community, and to support the like men and women who sought to march in the New York parade.... In 1993, members of GLIB marched behind a shamrock-strewn banner with the simple inscription "Irish American Gay, Lesbian and Bisexual Group of Boston." GLIB understandably seeks to communicate its ideas as part of the existing parade, rather than staging one of its own....

The Massachusetts public accommodations law under which respondents brought suit has a venerable history.... After the Civil War, the Commonwealth of Massachusetts was the first State to codify this principle to ensure access to public accommodations regardless of race....

In the case before us, however, the Massachusetts law has been applied in a peculiar way. Its enforcement does not address any dispute about the participation of openly gay, lesbian, or bisexual individuals in various units admitted to the parade. The petitioners disclaim any intent to exclude homosexuals as such, and no individual member of GLIB claims to have been excluded from parading as a member of any group that the Council has approved to march. Instead, the disagreement goes to the admission of GLIB as its own parade unit carrying its own banner.... Since every participating unit affects the message conveyed by the private organizers, the state courts' application of the statute produced an order essentially requiring petitioners to alter the expressive content of their parade. Although the state courts spoke of the parade as a place of public accommodation, ... once the expressive character of both the parade and the marching GLIB contingent is understood, it becomes apparent that the state courts' application of the statute had the effect of declaring the sponsors' speech itself to be the public accommodation. Under this approach any contingent of protected individuals with a message would have the right to participate in petitioners' speech, so that the communication produced by the private organizers would be shaped by all those protected by the law who wished to join in with some expressive demonstration of their own. But this use of the State's power violates the fundamental rule of protection under the First Amendment, that a speaker has the autonomy to choose the content of his own message....

Our holding today rests not on any particular view about the Council's message but on the Nation's commitment to protect freedom of speech. Disapproval of a private speaker's statement does not legitimize use of the Commonwealth's power to compel the speaker to alter the message by including one more acceptable to others. Accordingly, the judgment of the Supreme Judicial Court is reversed and the case remanded for proceedings not inconsistent with this opinion.

It is so ordered.