Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc

In Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc. (1995) 515 U.S. 557, the organizer of South Boston's St. Patrick's Day-Evacuation Day Parade denied participation to a group of gay, lesbian and bisexual descendents of Irish immigrants (GLIB) who wished to march in the parade. (Id. at pp. 560-561.) The Massachusetts high court held that exclusion of GLIB from the parade violated the antidiscrimination provisions of the state's public accommodations statute, and rejected the parade organizer's argument that mandating GLIB's admission would interfere with its First Amendment rights. (Hurley, at pp. 563-564.) The United States Supreme Court reversed, holding that mandating inclusion of GLIB "violates the fundamental rule of protection under the First Amendment, that a speaker has the autonomy to choose the content of his own message." (Hurley, at p. 573.) First, Hurley concluded that the parade was expressive. Parades are generally expressive, as they involve "marchers who are making some sort of collective point, not just to each other but to bystanders along the way." (Hurley, supra, 515 U.S. at p. 568.) The South Boston parade, in particular, was expressive, as "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." (Id. at p. 569.) The expressive content of the parade was not diminished by the fact that the organizers were lenient about admitting participants (id. at pp. 569-570), or that the parade had no "particularized message": "if confined to expressions conveying a 'particularized message,' , constitutional protection would never reach the unquestionably shielded painting of Jackson Pollock, music of Arnold Schoenberg, or Jabberwocky verse of Lewis Carroll." (Id. at p. 569.) GLIB's participation in the parade was equally expressive: the group sought to march in the parade "to celebrate its members' identity as openly gay, lesbian, and bisexual descendants of the Irish immigrants." (Id. at p. 570.) The court concluded that the parade organizer "clearly decided to exclude a message it did not like from the communication it chose to make, and that is enough to invoke its right as a private speaker to shape its expression by speaking on one subject while remaining silent on another." (Id. at p. 574.) Second, Hurley rejected GLIB's argument that its inclusion would not threaten the parade organizer's right to free speech because the organizer was merely a conduit for speech. The court held that GLIB's message would likely be identified with the parade organizer, "because GLIB's participation would likely be perceived as having resulted from the organizer's customary determination about a unit admitted to the parade, that its message was worthy of presentation and quite possibly of support as well." (Hurley, supra, 515 U.S. at pp. 575-576.) Hurley distinguished Turner Broadcasting System, Inc. v. FCC (1994) 512 U.S. 622, which upheld regulations requiring cable operators to reserve channels for certain broadcast signals. Hurley stated that there was a "common practice" by which cable operators could disclaim responsibility for views expressed on their broadcasts, but reasoned that "parades and demonstrations, in contrast, are not understood to be so neutrally presented or selectively viewed," and therefore "there is no customary practice whereby private sponsors disavow 'any identity of viewpoint' between themselves and the selected participants." (Hurley, at p. 576.) The court concluded that "without deciding on the precise significance of the likelihood of misattribution, it nonetheless becomes clear that in the context of an expressive parade, as with a protest march, the parade's overall message is distilled from the individual presentations along the way, and each unit's expression is perceived by spectators as part of the whole." (Id. at p. 577.) The court also noted that disclaimers would be impractical in a moving parade. (Id. at pp. 576-577.)