Hurley v. Irish-American Gay Group of Boston

The Supreme Court unanimously held that First Amendment protection did apply to the council and that, being private organizers, they could exclude a group whose message was one which they did not wish to express. Justice Souter, delivering the opinion of the unanimous Court, wrote, "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 might call such a procession a parade, but it would not 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 thus a 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 due to 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 itself to 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 their wishes. Also, if public accommodation is the message, as inappropriately considered by the lower court, any message produced by the council could then be changed 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 fundamental rule 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 or endorsements, 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 message the council disfavored was the suggestion that gay, lesbian, or bisexual people had as much claim to unqualified social acceptance as heterosexuals. The Court ruled that requiring this violated the council's First Amendment rights.