Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557; 115 S. Ct. 2338; 132 L. Ed. 2d 487 (1995)
Facts—Since 1947 an unincorporated group of veterans has sponsored the St. Patrick’s Day Parade in Boston. In 1992, it refused a request by the Irishmerican Gay, Lesbian and Bisexual Group of Boston for a permit to participate in its parade and was ordered by a state court to let the group take part. Again in 1993, a state trial court ruled that the gay group had a right to participate under the state’s public accommodation law, a judgment affirmed by the Supreme Judicial Court of Massachusetts. Hurley and other members of the Veterans Council argued that the state accommodation law violated rights of free expression and association.
Question—Do the First and Fourteenth Amendment protections of speech and association give organizers of a parade the right to exclude groups advocating messages of which they disapprove?
Decision—Yes.
Reasons—J. Souter (9–0). Parades are “public drams of social relations” and constitute a form of “expression, not just motion.” Such expression can be conveyed through symbols as well as through words. Although the Massachusetts public accommodations law has a “venerable history,” it is applied here in a peculiar way in that parade organizers did not attempt to exclude all participants who were gay, lesbian, or bisexual, but simply those marching as members of a group celebrating such lifestyles. The Court argued that “a speaker has the autonomy to choose the content of his own message.” The parade organizers act as composers, selecting and rejecting groups on the basis of what they think merits celebration. Unlike cable companies, which might have to transmit programs of which they disapprove, here there is a real chance that parade viewers will associate the parade organizers with the views of the groups they permit to participate. “While the law is free to promote all sorts of conduct in place of harmful behavior, it is not free to interfere with speech for no better reason than promoting an approved message or discouraging a disfavored one, however enlightened either purpose may strike the government.” The Court’s opinion “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.”
