Hurley v. Irish American GLIB Association
Decided on June 19, 1995; 515 US 557


Requiring private citizens who organize a parade to include against their will homosexual, lesbian and bisexual groups, would be a form of coerced speech and would violate organizers' First Amendment rights.

 

I. ISSUES II. CASE SUMMARY III. AMICI CURIAE IV. DECISION V. WIN OR LOSS?
I. ISSUES:

A. Issues Discussed: Free speech

B. Legal Question Presented:

Can Massachusetts require private citizens who organize a parade to include among the marchers a group imparting a message the organizers do not wish to convey?
II. CASE SUMMARY:

A. Background:

"Petitioner South Boston Allied War Veterans Council [(Council)], an unincorporated association of individuals elected from various veterans groups, was authorized by the city of Boston to organize and conduct the St. Patrick's Day-Evacuation Day Parade.

The Council refused a place in the 1993 event to respondent GLIB, an organization formed for the purpose of marching in the parade in order to express its members' pride in their Irish heritage as openly gay, lesbian, and bisexual individuals, to show that there are such 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 and some of its members filed this suit in state court, alleging that the denial of their application to march violated, inter alia, a state law prohibiting discrimination on account of sexual orientation in places of public accommodation.

In finding such a violation and ordering the Council to include GLIB in the parade, the trial court, among other things, concluded that the parade had no common theme other than the involvement of the participants, and that, given the Council's lack of selectivity in choosing parade participants and its failure to circumscribe the marchers' messages, the parade lacked any expressive purpose, such that GLIB's inclusion therein would not violate the Council's First Amendment rights.

The Supreme Judicial Court of Massachusetts affirmed."

On certiorari, the US Supreme Court reversed the judgment of the Supreme Judicial Court of Massachusetts.

B. Counsel of Record:
ACLU Side
(Respondent/Appellee)
Opposing Side
(Petitioner/Appellant)
Unavailable Unavailable
C. The Arguments:
ACLU Side
(Respondent/Appellee)
Opposing Side
(Petitioner/Appellant)
Unavailable Unavailable
III. AMICI CURIAE:
ACLU Side
(Respondent/Appellee)
Opposing Side
(Petitioner/Appellant)
John Ward argued the cause for respondents. With him on the brief were David Duncan, Gretchen Van Ness, Gary Buseck, Mary Bonauto, Larry W. Yackle, and Charles S. Sims.

A brief of amici curiae urging affirmance was filed for the American Civil Liberties Union by Burt Neuborne, Steven R. Shapiro, and Marjorie Heins.
Chester Darling argued the cause for petitioners. With him on the briefs were Dwight G. Duncan and William M. Connolly.


IV. THE SUPREME COURT'S DECISION:

The Supreme Court held that:

"The state courts' application of the Massachusetts public accommodations law to require private citizens who organize a parade to include among the marchers a group imparting a message that the organizers do not wish to convey violates the First Amendment.

...The selection of contingents to make a parade is entitled to First Amendment protection. Parades such as petitioners' are a form of protected expression because they include marchers who are making some sort of collective point, not just to each other but to bystanders along the way. Moreover, such protection is not limited to a parade's banners and songs, but extends to symbolic acts.

Although the Council has been rather lenient in admitting participants to its parade, a private speaker does not forfeit constitutional protection simply by combining multifarious voices, by failing to edit their themes to isolate a specific message as the exclusive subject matter of the speech, or by failing to generate, as an original matter, each item featured in the communication. Thus, petitioners are entitled to protection under the First Amendment. GLIB's participation as a unit in the parade was equally expressive, since the organization was formed to celebrate its members' sexual identities and for related purposes...

[T]he state courts' peculiar application of the Massachusetts law essentially forced the Council to alter the parade's expressive content and thereby violated the fundamental First Amendment rule that a speaker has the autonomy to choose the content of his own message and, conversely, to decide what not to say."

The US Supreme Court reversed the Supreme Judicial Court of Massachusetts judgment.

Justice Vote: 0 Pro vs. 9 Con
  • Souter, D. Con (Wrote majority opinioin)
  • Thomas, C. Con (Joined majority opinion)
  • Ginsburg, R. Con (Joined majority opinion)
  • Breyer, S. Con (Joined majority opinion)
  • O'Connor, S. Con (Joined majority opinion)
  • Scalia, A. Con (Joined majority opinion)
  • Kennedy, A. Con (Joined majority opinion)
  • Stevens, J. Con (Joined majority opinion)
  • Rehnquist, W. Con (Joined majority opinion)
V. A WIN OR LOSS FOR THE ACLU?

The ACLU, as amicus curiae, urged affirmance of the judgment of the Supreme Judicial Court of Massachusetts; the Supreme Court reversed in a 0-9 vote, giving the ACLU an apparent loss.