Hurley v. Irish-American Gay Group of Boston

The ruling recognized that privately organized parades are a form of private expression and are protected under the First Amendment. The private organizer can select which messages are expressed to onlookers and which messages left out. Denying participation of certain groups, in essence, exercises a right not 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. In common law, innkeepers, blacksmiths, and others serving the public could not refuse service without good reason. After the Civil War, the Commonwealth of Massachusetts 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 to prohibit among other things, discrimination on the basis of "race, color, religious creed, national origin, sex, and sexual orientation." These provisions are 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 year on 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 Boston veteran groups, annually applied for and received a parade permit. Organizations wishing to march in the parade applied to the council, who then selected the 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 support the like men and women who sought to march in the New York St. Patrick's Day parade." 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 the First 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 . . . sexual orientation . . . relative to the admission of any person to, or treatment in any 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 identified a lack of selectivity in choosing participants since no particular procedures for admission existed, applications were voted on in batches, and at times groups simply joined on the day of parade. The court considered the parade a "public event" with the only common theme among the participants being their public involvement. The parade therefore was within the public accommodation definition. 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 was present. 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 to hear 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."