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Chester Darling argued the cause for petitioners. With him on the briefs were Dwight G. Duncan and William M.
Chester Darling argued the cause for petitioners. With lesban on the briefs were Dwight G. Duncan and William M. John Ward argued the cause for respondents. Yackle, and Charles S. The issue in this case is whether Massachusetts may require private citizens who organize a parade to include among the marchers a group imparting a message the organizers do not wish to convey.
We hold that such a mandate violates the First Amendment. As early boostonsome people in Boston observed the feast of the apostle to Ireland, and since the day has marked the evacuation of royal troops and Loyalists from the city, prompted by the guns captured at Ticonderoga and set up on Dorchester Heights under General Washington's ckub. Washington himself reportedly drew on the earlier tradition in choosing "St. Patrick" as the response to "Boston," the password used in lesbian club boston colonial lines on evacuation day.
Crimmins, St. Hatch ed. Ellis ed. City of Boston et al. Action No. B1, B8-B9. The boshon of formal sponsorship by the city came to an end inhowever, when Mayor James Michael Curley himself blston authority to organize and conduct the St. No other applicant has ever leebian for that permit. Throughthe city allowed the Council to llesbian the city's official seal, and provided printing services as well as direct funding. Ina of gay, lesbian, and lesbjan descendants of the Irish immigrants ed together with other supporters to form the respondent organization, GLIB, to march in the parade as a way cljb express pride in their Irish heritage as openly gay, lesbian, and bisexual individuals, to demonstrate that there are such men and women among those so descended, and to express their solidarity with like individuals who sought to march in New York's St.
Patrick's Day Parade. Although the Council denied GLIB's application to take part in the parade, GLIB obtained a state-court order to include its contingent, which marched "uneventfully" among that year's 10, participants andspectators. B3, and n. Inafter the Council had again refused to admit GLIB to the upcoming parade, the organization and some of its members filed this suit against the Council, the individual petitioner John J.
After finding that "[f]or at least the past 47 years, the Parade has traveled llesbian same basic route along the public streets of South Boston, providing entertainment, amusement, and recreation to participants and spectators alike," App. The court found that the Council had no written criteria and employed no particular procedures for admission, voted on new applications in batches, had occasionally admitted groups who simply showed up at the parade without having submitted an application, and did "not generally inquire into the specific messages or views of each applicant.
The court consequently rejected the Council's contention that the parade was "private" in the sense of being exclusiveholding instead that "the lack of genuine selectivity in choosing participants and sponsors demonstrates that the Parade is a public event. It found the parade to be "eclectic," containing a wide variety of "patriotic, commercial, political, moral, artistic, religious, athletic, public service, trade union, and eleemosynary themes," as well as conflicting messages.
The court rejected the Council's assertion that the exclusion of "groups lesbian club boston sexual themes merely formalized [the fact] that the Parade expresses traditional religious and social values," bodton. This position, in the court's view, was not only violative of the public accommodations law but "paradoxical" as well, since "a proper celebration of St. Patrick's and Evacuation Day requires diversity and inclusiveness. The court rejected the notion that GLIB's admission would trample on the Council's First Amendment rights since the court understood that constitutional protection of any interest in boton association would "requir[e] focus on a specific message, theme, or group" absent from the parade.
It concluded that blston parade is "not an exercise of [the Council's] constitutionally protected right of expressive association," but instead "an open recreational event that is subject to the public accommodations law. The court held that because the statute lcub not mandate inclusion of GLIB but only prohibited discrimination based on sexual orientation, any infringement on the Council's right to expressive association was only "incidental" and "no greater than necessary to accomplish the statute's legitimate purpose" of eradicating discrimination.
United States Jaycees, U. Accordingly, it ruled clib "GLIB is entitled to participate in the Parade on the same terms and conditions as other participants.
Boston, Mass. The defendants had thus failed at the trial level "to demonstrate that the parade truly was an exercise of. First Amendment rights," id. Community for Creative Non-Violence, U. The court rejected petitioners' further challenge to the law as overbroad, holding that it does not, on its face, regulate speech, does not let public officials examine the content of speech, and would not be interpreted as reaching speech.
Justice Nolan dissented.
In his view, the Council "does not need a narrow or distinct theme or message in its parade for it to be protected under the First Amendment. First, he wrote, even if the parade had no message at all, GLIB's particular message could not be forced upon it. Maynard, U. Second, according to Justice Nolan, the trial judge clearly erred in finding the parade devoid of expressive purpose.
He would have held that the Council, like any expressive association, cannot be barred from excluding lesboan who do not share the views the Council wishes to advance. Under either a pure speech or associational theory, hoston State's lesbian club boston of eliminating discrimination on the basis of sexual orientation, according to the dissent, could be achieved by more narrowly drawn means, such as ordering admission of individuals regardless of sexual preference, without taking the further step of prohibiting the Council from editing the views expressed in their parade.
In Justice Nolan's opinion, because GLIB's message was separable from the status of its members, such a narrower order would accommodate the State's interest without the likelihood goston infringing on the Council's First Amendment rights. Finally, he obston clear error in the trial judge's equation of exclusion on the basis of GLIB's message with exclusion on the basis of its members' sexual orientation. To the dissent this appeared false in the light of "overwhelming evidence" that the Council objected to GLIB on of its message and a dearth of testimony or documentation indicating that sexual orientation was the bar to admission.
The dissent accordingly concluded that the Council had not even violated the State's public accommodations law. We granted certiorari to determine whether the requirement to admit a parade contingent lesbisn a message not of the private organizers' own choosing violates the First Amendment. We hold that it does and reverse. Lesboan Given the scope of the issues as originally ed in this case, it is worth noting some that have fallen cllub in the course of the litigation, before reaching us.
Although the Council presents us with a First Amendment claim, respondents do not. Neither do they press a claim that the Council's action has denied them equal protection of the laws in violation of the Fourteenth Amendment. While the guarantees of free speech and equal protection guard only against encroachment by the government and "erec[t] no shield against merely private conduct," Shelley v.
NLRB, U. The trial court's review of the city's involvement led it to find otherwise, however, and although the Supreme Judicial Court did not squarely address the issue, it appears to have affirmed the trial court's decision on that point as well as the others. In any event, respondents have not brought that question up either in a cross-petition for certiorari or in their briefs filed in this Court.
When asked at oral argument whether they challenged the conclusion by the Massachusetts' courts that no state action is involved in the parade, respondents' counsel answered that they "do not press that issue here.
In this Court, then, their claim for inclusion in the parade rests solely on the Massachusetts public accommodations law. Accordingly, our review of petitioners' claim that their activity is indeed in the dlub of protected speech carries with it a constitutional duty to conduct an independent examination of the record as a whole, without deference to the trial court. See Bose Corp. Consumers Union of United States, Inc.
The "requirement of independent appellate review. Connaughton, U. Kansas, U.
Bostpn also Niemotko v. Maryland, U. Ohio, U. This obligation rests upon us simply because the reaches of the First Lesbian club boston are ultimately defined by the facts it is held to embrace, and we must thus decide for ourselves whether a given course of conduct falls on the near or far side of the line of bostno protection. Even where a speech case has originally been tried in a federal court, subject to the provision of Federal Rule of Civil Procedure 52 a that "[f]indings of fact.
Sullivan, U. South Carolina, U. III A 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 people might call such a procession a parade, but it would not be much of one. Real "[p]arades are public dramas of social relations, and in them performers define who can be a social actor and what subjects and ideas are available for communication and consideration.
Hence, we use the word "parade" to bostoh marchers who are making some sort of collective point, not llesbian to each other but to bystanders along the way. Indeed, a parade's dependence on watchers is so extreme that nowadays, as with Bishop Berkeley's celebrated tree, "if a bosron or demonstration receives no media coverage, it may as well not have happened.
Parades are thus a form of expression, not just motion, and the inherent expressiveness of marching to make a point explains our cases involving protest ckub. In Gregory v. Chicago, U. Birmingham, U. The protected expression that inheres in a parade is not limited to its banners cpub songs, however, for the Constitution looks beyond written or spoken words as mediums of expression.
Noting that "[s]ymbolism is a primitive but effective way of communicating ideas," West Virginia Bd. Barnette, U.
California, U. Skokie, U. As some of these examples show, a narrow, succinctly articulable message bosto not a condition of constitutional protection, which if confined to expressions conveying a "particularized message," cf. Spence v. Washington, U. Not many marches, then, are beyond the realm of expressive parades, and the South Boston celebration is not one of them. Spectators line the streets; people march in costumes and uniforms, carrying flags and banners with all sorts of messages e.
See Record, Exh. To be sure, we agree with the state courts that in spite of excluding some applicants, the Council is rather lenient in admitting participants.
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