Case Summary and Outcome

The U.S. Supreme Court reinforced the First Amendment protections of private speakers, finding that private parade organizers could not be forced by state law to include participant organizations whose message they did not wish to include. The South Boston Allied War Veterans Council, refused to allow GLIB, a gay rights organization, to march in the annual St. Patrick’s Day and Evacuation Day Parade; GILB sued the Council for violation of the U.S. Constitution, the Massachusetts’ state constitution and a state public accommodations law. In its ruling, the Court accepted the Council’s argument that LGBT individuals were not prevented from marching in the parade overall and held that the application of the public accommodations law in the present case violated the Council’s First Amendment right to control every participating unit of a parade so as to give effect to the overall message the private parade organizers wished to convey.

Facts

In 1992, a group of lesbian, gay, and bisexuals of Irish descent created Irish American Gay, Lesbian, Bisexual Group of Boston (“GILB”) to celebrate their Irish heritage and sexual orientation. South Boston Allied War Veterans Council denied GILB’s application to march in the 1992 St. Patrick’s Day and Evacuation Day Parade. However, GILB obtained a court order and marched among 10,000 parade participants and 750,000 spectators. In 1993, the Council once again refused to allow GILB to participate in the parade. Subsequently, GILB filed suit against the Council, John J.Hurley, and the city of Boston alleging that its exclusion from the parade violated the U.S. Constitution, as well as the Massachusetts state constitution and a state public accommodations law. The Massachusetts public accommodations law prohibited discrimination against individuals based on their sexual orientation in any public places.

The trial court held that the public accommodations law prevented the Council from excluding the GILB from marching in the parade. It said that the Council had no written nor formalized particular admission procedure; often admitted groups in batches; had allowed groups to march who had simply shown up on the day of the event; and generally did not inquire into the viewpoints of participants and applicants and admitted groups with conflicting views. Because of this, the trial court said that the parade conveyed no specific theme and therefore no specific expressive purpose was present, and no expression existed to violate. Exclusion of GLIB because of its message of proclaiming its members’ sexual orientation clearly violated the public accommodations law. The  court granted GILB’s request and permitted the group to participate in the St. Patrick’s Day Parade on the same terms as other participants.

The Supreme Judicial Court of Massachusetts affirmed the trial court’s decision on all points.

The U.S. Supreme Court granted certiorari,  and 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.”

Decision Overview

The U.S. Supreme Court unanimously held that the Massachusetts public accommodations law was not unconstitutional but the state courts’ application of the 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 violated the organizers’ First Amendment rights.

The Court said that parades are a form of expression, whether they are promoting social justice or pride; the protection of expression in parades is not limited to banners and songs; and nor does the First Amendment only protect parades with a narrow, clear, and ‘particularized’ message. On the other hand, the Court said that GILB was formed with the express intention to march in the St. Patrick’s Day Parade and wanted to communicate its message as part of the parade rather than starting its own.

The Court specifically distinguished this decision from its ruling in Turner Broadcasting which had held that federal legislation mandating cable television systems to devote a specified portion of their channels to the transmission of local commercial and public broadcast stations was constitutional. The Court stated that the cable’s long history of acting as a conduit for multiple broadcasters meant there would be little risk of consumers assuming what was broadcast was the opinion of the cable provider. Further, it is common practice for broadcasters to disclaim any identity of viewpoint between the management and the speakers who use the broadcast facility. On the other hand, a parade does not consist of individual, unrelated segments that happen to be transmitted together for individual selection by members of the audience. Although each parade unit generally identifies itself, each is understood to contribute something to a common theme, and accordingly there is no customary practice whereby private sponsors disavow “any identity of viewpoint” between themselves and the selected participants as there is with cable operators.

Accordingly, the Court found that Massachusetts public accommodations law which targeted discrimination against minorities was constitutional but held that its application in the present case was not. The Court accepted the Council’s argument that individuals who identify as lesbian, gay, or bisexual were not prevented from marching in the parade overall and noted that no individual member of GILB claimed to be excluded from marching with another group. Accordingly, the Supreme Court held that the application of the public accommodations law in the present case was incorrect and violated the Council’s First Amendment right to control every participating unit of a parade so as to give effect to the overall message the private parade organizers wished to convey. The Court said that “A speaker has the autonomy to choose the content of his own message.”

The U.S. Supreme Court reversed the judgment of the Supreme Judicial Court and remanded the case for proceedings consistent with its opinion.