Petitioner
John J. Hurley and South Boston Allied War Veterans Council
Respondent
Irish-American Gay, Lesbian and Bisexual Group of Boston, et al.
Petitioner's Claim
That First Amendment Freedom of Speech protection extends to a private organizer's choice of which groups can participate in Boston's St. Patrick's Day Parade based on the content of their intended messages.
Chief Lawyers for Petitioner
Chester Darling and Dwight G. Duncan
Chief Lawyer for Respondent
John Ward
Justices for the Court
Stephen Breyer, Ruth Bader Ginsburg, Anthony M. Kennedy, Sandra Day O'Connor,William H. Rehnquist, Antonin Scalia, David H. Souter (writing for the Court), John Paul Stevens, Clarence Thomas
Justices Dissenting
None
Place
Washington, D.C.
Date of Decision
19 June 1995
Decision
Upheld the parade organizer's claim and overturned two lower courts' decisions that banned the organizer's practice of excluding groups from parades due to the messages they express.
Significance
The ruling recognized that privately organized parades are a form of privateexpression and are protected under the First Amendment. The private organizercan select which messages are expressed to onlookers and which messages leftout. Denying participation of certain groups, in essence, exercises a rightnot to speak. However, many long established parades around the nation organized by private organizations are often considered civic in character thus blurring the distinction between private and public expression. The Supreme Court's decision broadened constitutionally protected symbolic speech by accepting a less focused message than in previous cases.
The Massachusetts public accommodations law has a long, colorful history. Incommon law, innkeepers, blacksmiths, and others serving the public could notrefuse service without good reason. After the Civil War, the Commonwealth ofMassachusetts was the first state to turn this principle into law expanding it to cover any "public place of amusement, public conveyance [transportation]or public meeting." The state legislature continued to broaden the scope toprohibit among other things, discrimination on the basis of "race, color, religious creed, national origin, sex, and sexual orientation." These provisionsare well within the state's usual power to act when the legislature has reason to believe a given group could be a target of discrimination. The provisions were safe from First Amendment violation since the content of speech was not targeted.
As early as 1737 citizens of Boston observed the feast of the apostle to Ireland, St. Patrick. In 1776, the evacuation of British troops and Loyalists from Boston during the Revolutionary War created another cause for celebration.Both the feast of St. Patrick and the evacuation are commemorated every yearon 17 March with a parade. Previously sponsored by the city of Boston, in 1947 the South Boston Allied War Veterans Council was granted authority to organize and conduct the St. Patrick's Day-Evacuation Day Parade. After 1947 the council, an unincorporated association of persons elected from various Bostonveteran groups, annually applied for and received a parade permit. Organizations wishing to march in the parade applied to the council, who then selectedthe participants. The popular parade included up to 20,000 marchers and one million watchers in a single year.
In 1992, the council denied the Irish-American Gay, Lesbian and Bisexual Group of Boston (GLIB) a place in the parade. GLIB was formed specifically for the parade "in order to express its members, pride in their Irish heritage as openly gay, lesbian, and bisexual individuals in the community, and to supportthe like men and women who sought to march in the New York St. Patrick's Dayparade." GLIB obtained a state court order and marched in the parade that year.
In 1993 GLIB applied to the council and was denied again. GLIB filed suit alleging the denial violated the Massachusetts public accommodations law and theFirst Amendment of the U.S. Constitution, which protects freedom of speech and expression. GLIB argued the public accommodations law, as stated, prohibits "any distinction, discrimination or restriction on account of . . . sexualorientation . . . relative to the admission of any person to, or treatment inany place of public accommodation, resort, or amusement." A public accommodation is defined as "any place . . . which is open to and accepts the patronage [business] of the general public and . . . a boardwalk or other public highway [and] . . . a place of public amusement, recreation, sport, exercise or entertainment."
The trial court found in favor of GLIB. It ruled the parade, occured in the public streets of South Boston for 47 years, provided "entertainment, amusement, and recreation to participants and spectators alike." The court identifieda lack of selectivity in choosing participants since no particular procedures for admission existed, applications were voted on in batches, and at timesgroups simply joined on the day of parade. The court considered the parade a"public event" with the only common theme among the participants being theirpublic involvement. The parade therefore was within the public accommodationdefinition. Exclusion of GLIB because of its message of proclaiming its members' sexual orientation clearly violated the public accommodations law. With respect to the alleged First Amendment violation, the trial court found the parade conveyed no specific theme therefore no specific expressive purpose waspresent. Consequently, no expression existed to violate.
The Supreme Judicial Court of Massachusetts affirmed the trial court's decision on all points. The U.S. Supreme Court granted certiorari, agreed tohear the case, to "determine whether the requirement to admit a parade contingent [group] expressing a message not of the private organizer's own choosing violates the First Amendment."
Parades Are Expression Too
The Supreme Court unanimously held that First Amendment protection did applyto the council and that, being private organizers, they could exclude a groupwhose message was one which they did not wish to express. Justice Souter, delivering the opinion of the unanimous Court, wrote, "If there were no reasonfor 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 might call such a procession a parade, but it wouldnot be much of one." Real parades make "some sort of collective point, not just to each other but to bystanders along the way." If there is no media coverage, the parade might as well not happen. Souter continued, "Parades are thusa form of expression, not just motion" and integral to the marching is expression to make a point. In both Gregory v. City of Chicago (1969) and Edwards v. South Carolina (1963), the Court ruled that processions to express social points were protected by the First Amendment and "reflect an exercise of these basic constitutional rights in their most pristine and classic form." Protected expression in a parade was not limited to banners and songs, but extended to such symbolism as wearing arm bands or saluting a flag. Likewise, a parade need not have only one theme, but can have all sorts of messages, and a private organizer does not forfeit constitutional protection dueto the inclusion of various messages.
Regarding the Massachusetts public accommodations law, the Supreme Court ruled that though the law was in keeping with the First Amendment the state court's application of the law violated the First Amendment. Souter wrote, "Although the state courts spoke of the parade as a place of public accommodation, it becomes apparent that the state court's application of the statute [law] had the effect of declaring the sponsor's [council's] speech or message itselfto be the public accommodation." The Court disagreed.
The Court found the parade was expressive and the effect of the lower courts'rulings were to make the private organizer alter the message of its parade.In essence, the ruling forced the council to speak on a subject against theirwishes. Also, if public accommodation is the message, as inappropriately considered by the lower court, any message produced by the council could then bechanged and shaped by all those who wished to join and convey their own theme. Souter wrote that "this use of the State's power violates the fundamentalrule of protection under the First Amendment, that a speaker has the autonomy[freedom] to choose the content of his own message." Furthermore, the speaker, in this case parade organizer, also had the right to decide "what not to say." The council could not only determine how to express values, opinions orendorsements, but also decide what to leave out altogether.
The council, by selecting specific units for the parade, expressed a sufficiently particular message in the eyes of the Court. The Court found the messagethe council disfavored was the suggestion that gay, lesbian, or bisexual people had as much claim to unqualified social acceptance as heterosexuals. TheCourt ruled that requiring this violated the council's First Amendment rights.
Impact
The Hurley decision held that privately organized parades were a formof symbolic private expression. The Supreme Court has found that symbolic speech was sufficient in some cases to deserve First Amendment protection. In 1941 the Court also determined that parades comprise such a form of protected symbolic speech, but they can also be subject to greater regulation than purespeech. For example, though laws must be nondiscriminatory in regulating parades, local governments can control when and where parades are held due to conflicts with other citizens' use of public places, such as city streets. In the 1974 Spence v. Washington case, the Court established a test to determine when actions constitute protected symbolic speech. Factors included whether a specific "particularized" message was intended, and whether an audience would be able to understand the message.
The Court in Hurley was accused of blurring distinctions regarding symbolic speech in two ways. In Hurley , the Court broadened the "particularized message" requirement by stating that "a narrow, succinctly articulable message is not a condition of constitutional speech." Though the St. Patrick's Day organizers had nothing in particular to express by its actions, stillit was worthy of protected expression in the Court's eyes. Secondly, the blurring of private and public occurred in Hurley. Clearly, the Freedom of Speech Clause only applies to government actions. However, to many the St.Patrick's Day parade, held annually since the eighteenth century, was more a"civic" event than a private activity. In addition, local government action involved authorizing the private organizer, issuing a permit, and making available city streets. Yet the Court determined those factors irrelevant. The Court instead opposed the idea that government restrictions could be placed on essentially noncommercial speech and the "flow of ideas." The Court thus expanded what was considered protected speech and further confused the place of constitutional protections in what were considered by many civic parades. The Hurley decision again demonstrated the difficulty in both defining protected speech and establishing when a party has the right not to speak.
In the years following the Supreme Court ruling, Irish gay and lesbian groupsin various cities continued to fight for inclusion in St. Patrick's Day parades. By the late 1990s gay and lesbian protests even began to be considered atraditional part of the events.
Related Cases
John J. Hurley and South Boston Allied War Veterans Council
Respondent
Irish-American Gay, Lesbian and Bisexual Group of Boston, et al.
Petitioner's Claim
That First Amendment Freedom of Speech protection extends to a private organizer's choice of which groups can participate in Boston's St. Patrick's Day Parade based on the content of their intended messages.
Chief Lawyers for Petitioner
Chester Darling and Dwight G. Duncan
Chief Lawyer for Respondent
John Ward
Justices for the Court
Stephen Breyer, Ruth Bader Ginsburg, Anthony M. Kennedy, Sandra Day O'Connor,William H. Rehnquist, Antonin Scalia, David H. Souter (writing for the Court), John Paul Stevens, Clarence Thomas
Justices Dissenting
None
Place
Washington, D.C.
Date of Decision
19 June 1995
Decision
Upheld the parade organizer's claim and overturned two lower courts' decisions that banned the organizer's practice of excluding groups from parades due to the messages they express.
Significance
The ruling recognized that privately organized parades are a form of privateexpression and are protected under the First Amendment. The private organizercan select which messages are expressed to onlookers and which messages leftout. Denying participation of certain groups, in essence, exercises a rightnot to speak. However, many long established parades around the nation organized by private organizations are often considered civic in character thus blurring the distinction between private and public expression. The Supreme Court's decision broadened constitutionally protected symbolic speech by accepting a less focused message than in previous cases.
The Massachusetts public accommodations law has a long, colorful history. Incommon law, innkeepers, blacksmiths, and others serving the public could notrefuse service without good reason. After the Civil War, the Commonwealth ofMassachusetts was the first state to turn this principle into law expanding it to cover any "public place of amusement, public conveyance [transportation]or public meeting." The state legislature continued to broaden the scope toprohibit among other things, discrimination on the basis of "race, color, religious creed, national origin, sex, and sexual orientation." These provisionsare well within the state's usual power to act when the legislature has reason to believe a given group could be a target of discrimination. The provisions were safe from First Amendment violation since the content of speech was not targeted.
As early as 1737 citizens of Boston observed the feast of the apostle to Ireland, St. Patrick. In 1776, the evacuation of British troops and Loyalists from Boston during the Revolutionary War created another cause for celebration.Both the feast of St. Patrick and the evacuation are commemorated every yearon 17 March with a parade. Previously sponsored by the city of Boston, in 1947 the South Boston Allied War Veterans Council was granted authority to organize and conduct the St. Patrick's Day-Evacuation Day Parade. After 1947 the council, an unincorporated association of persons elected from various Bostonveteran groups, annually applied for and received a parade permit. Organizations wishing to march in the parade applied to the council, who then selectedthe participants. The popular parade included up to 20,000 marchers and one million watchers in a single year.
In 1992, the council denied the Irish-American Gay, Lesbian and Bisexual Group of Boston (GLIB) a place in the parade. GLIB was formed specifically for the parade "in order to express its members, pride in their Irish heritage as openly gay, lesbian, and bisexual individuals in the community, and to supportthe like men and women who sought to march in the New York St. Patrick's Dayparade." GLIB obtained a state court order and marched in the parade that year.
In 1993 GLIB applied to the council and was denied again. GLIB filed suit alleging the denial violated the Massachusetts public accommodations law and theFirst Amendment of the U.S. Constitution, which protects freedom of speech and expression. GLIB argued the public accommodations law, as stated, prohibits "any distinction, discrimination or restriction on account of . . . sexualorientation . . . relative to the admission of any person to, or treatment inany place of public accommodation, resort, or amusement." A public accommodation is defined as "any place . . . which is open to and accepts the patronage [business] of the general public and . . . a boardwalk or other public highway [and] . . . a place of public amusement, recreation, sport, exercise or entertainment."
The trial court found in favor of GLIB. It ruled the parade, occured in the public streets of South Boston for 47 years, provided "entertainment, amusement, and recreation to participants and spectators alike." The court identifieda lack of selectivity in choosing participants since no particular procedures for admission existed, applications were voted on in batches, and at timesgroups simply joined on the day of parade. The court considered the parade a"public event" with the only common theme among the participants being theirpublic involvement. The parade therefore was within the public accommodationdefinition. Exclusion of GLIB because of its message of proclaiming its members' sexual orientation clearly violated the public accommodations law. With respect to the alleged First Amendment violation, the trial court found the parade conveyed no specific theme therefore no specific expressive purpose waspresent. Consequently, no expression existed to violate.
The Supreme Judicial Court of Massachusetts affirmed the trial court's decision on all points. The U.S. Supreme Court granted certiorari, agreed tohear the case, to "determine whether the requirement to admit a parade contingent [group] expressing a message not of the private organizer's own choosing violates the First Amendment."
Parades Are Expression Too
The Supreme Court unanimously held that First Amendment protection did applyto the council and that, being private organizers, they could exclude a groupwhose message was one which they did not wish to express. Justice Souter, delivering the opinion of the unanimous Court, wrote, "If there were no reasonfor 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 might call such a procession a parade, but it wouldnot be much of one." Real parades make "some sort of collective point, not just to each other but to bystanders along the way." If there is no media coverage, the parade might as well not happen. Souter continued, "Parades are thusa form of expression, not just motion" and integral to the marching is expression to make a point. In both Gregory v. City of Chicago (1969) and Edwards v. South Carolina (1963), the Court ruled that processions to express social points were protected by the First Amendment and "reflect an exercise of these basic constitutional rights in their most pristine and classic form." Protected expression in a parade was not limited to banners and songs, but extended to such symbolism as wearing arm bands or saluting a flag. Likewise, a parade need not have only one theme, but can have all sorts of messages, and a private organizer does not forfeit constitutional protection dueto the inclusion of various messages.
Regarding the Massachusetts public accommodations law, the Supreme Court ruled that though the law was in keeping with the First Amendment the state court's application of the law violated the First Amendment. Souter wrote, "Although the state courts spoke of the parade as a place of public accommodation, it becomes apparent that the state court's application of the statute [law] had the effect of declaring the sponsor's [council's] speech or message itselfto be the public accommodation." The Court disagreed.
The Court found the parade was expressive and the effect of the lower courts'rulings were to make the private organizer alter the message of its parade.In essence, the ruling forced the council to speak on a subject against theirwishes. Also, if public accommodation is the message, as inappropriately considered by the lower court, any message produced by the council could then bechanged and shaped by all those who wished to join and convey their own theme. Souter wrote that "this use of the State's power violates the fundamentalrule of protection under the First Amendment, that a speaker has the autonomy[freedom] to choose the content of his own message." Furthermore, the speaker, in this case parade organizer, also had the right to decide "what not to say." The council could not only determine how to express values, opinions orendorsements, but also decide what to leave out altogether.
The council, by selecting specific units for the parade, expressed a sufficiently particular message in the eyes of the Court. The Court found the messagethe council disfavored was the suggestion that gay, lesbian, or bisexual people had as much claim to unqualified social acceptance as heterosexuals. TheCourt ruled that requiring this violated the council's First Amendment rights.
Impact
The Hurley decision held that privately organized parades were a formof symbolic private expression. The Supreme Court has found that symbolic speech was sufficient in some cases to deserve First Amendment protection. In 1941 the Court also determined that parades comprise such a form of protected symbolic speech, but they can also be subject to greater regulation than purespeech. For example, though laws must be nondiscriminatory in regulating parades, local governments can control when and where parades are held due to conflicts with other citizens' use of public places, such as city streets. In the 1974 Spence v. Washington case, the Court established a test to determine when actions constitute protected symbolic speech. Factors included whether a specific "particularized" message was intended, and whether an audience would be able to understand the message.
The Court in Hurley was accused of blurring distinctions regarding symbolic speech in two ways. In Hurley , the Court broadened the "particularized message" requirement by stating that "a narrow, succinctly articulable message is not a condition of constitutional speech." Though the St. Patrick's Day organizers had nothing in particular to express by its actions, stillit was worthy of protected expression in the Court's eyes. Secondly, the blurring of private and public occurred in Hurley. Clearly, the Freedom of Speech Clause only applies to government actions. However, to many the St.Patrick's Day parade, held annually since the eighteenth century, was more a"civic" event than a private activity. In addition, local government action involved authorizing the private organizer, issuing a permit, and making available city streets. Yet the Court determined those factors irrelevant. The Court instead opposed the idea that government restrictions could be placed on essentially noncommercial speech and the "flow of ideas." The Court thus expanded what was considered protected speech and further confused the place of constitutional protections in what were considered by many civic parades. The Hurley decision again demonstrated the difficulty in both defining protected speech and establishing when a party has the right not to speak.
In the years following the Supreme Court ruling, Irish gay and lesbian groupsin various cities continued to fight for inclusion in St. Patrick's Day parades. By the late 1990s gay and lesbian protests even began to be considered atraditional part of the events.
Related Cases
- Edwards v. South Carolina, 372 U.S. 229 (1963).
- Gregory v. City of Chicago, 394 U.S. 111 (1969).
- Spence v. Washington, 418 U.S. 405 (1974).
- Turner Broadcasting System, Inc. v. FCC., 520 U.S. 180 (1997).
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