OCTOBER TERM, 1994
Syllabus
HURLEY ET AL.
v. IRISH-AMERICAN GAY, LESBIAN AND BISEXUAL
GROUP
OF BOSTON, INC., ET AL.
CERTIORARI TO THE SUPREME JUDICIAL COURT OF MASSACHUSETTS
No. 94-749. Argued April 25, 1995-Decided June 19, 1995
Petitioner South Boston Allied War Veterans 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.
Held: 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. Pp. 566-581.
(a) Confronted with the state courts' conclusion that the
factual characteristics of petitioners' activity place it within
the realm of nonexpressive conduct, this Court has a constitutional
duty to conduct an independent examination of the record as a
whole, without deference to those courts, to assure that their
judgment does not constitute a forbidden intrusion on the field
offree expression. See,
e. g.,
New York Times Co. v.
Sullivan, 376
U. S. 254, 285. Pp. 566-568.
558
Syllabus
(b) 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. Cf.,
e. g., Gregory v.
Chicago, 394
U. S. 111, 112. Moreover, such protection is not limited to a
parade's banners and songs, but extends to symbolic acts. See,
e. g., West Virginia Bd. of Ed. v.
Barnette, 319 U. S. 624, 632, 642.
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.
Pp. 568-570.
(c) The Massachusetts law does not, as a general matter, violate
the First or Fourteenth Amendments. Its provisions are well within
a legislature's power to enact when it has reason to believe that a
given group is being discriminated against. And the statute does
not, on its face, target speech or discriminate on the basis of its
content. Pp.571-572.
(d) The state court's application, however, had the effect of
declaring the sponsors' speech itself to be the public
accommodation. Since every participating parade unit affects the
message conveyed by the private organizers, the 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. Petitioners' claim to the
benefit of this principle is sound, since the Council selects the
expressive units of the parade from potential participants and
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, free from state
interference. The constitutional violation is not saved by
Turner Broadcasting System, Inc. v.
FCC, 512 U. S. 622. The
Council is a speaker in its own right; a parade does not consist of
individual, unrelated segments that happen to be transmitted
together for individual selection by members of the audience; and
there is no assertion here that some speakers will be destroyed in
the absence of
559
the Massachusetts law. Nor has any other legitimate interest
been identified in support of applying that law in the way done by
the state courts to expressive activity like the parade.
PruneYard Shopping Center v.
Robins, 447 U. S. 74,87, and
New York State Club Assn., Inc. v.
City of New York,
487 U. S. 1, 13,
distinguished. Pp. 572-581.
418 Mass. 238, 636 N. E. 2d 1293, reversed and remanded.
SOUTER, J., delivered the opinion for a unanimous Court.
Chester Darling argued the cause for petitioners. With
him on the briefs were
Dwight G.
Duncan and
William M. Connolly.
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. *
JUSTICE SOUTER delivered the opinion of the Court.
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.
*Briefs of
amici curiae urging reversal were filed for
the Boy Scouts of America by
George A. Davidson, Carla A.
Kerr, and
David K. Park; for the Catholic War Veterans
of the United States of America, Inc., by
John P. Hale; for
the Center for Individual Rights et al. by
Gary B. Born, Ernest
L. Mathews, Jr., Maura R. Cahill, and
Michael P.
McDonald; and for the Christian Legal Society et al. by
Steven T. McFarland, Samuel B. Casey, and
Gregory S.
Baylor.
Briefs of amici curiae urging affirmance were filed for the
AntiDefamation League et al. by Walter A. Smith, Jr., Thomas N.
Bulleit, Jr., Steven M. Freeman, Arlene B. Mayerson, Antonia
Hernandez, Alice E. Zaft, Judith L. Lichtman, and Donna R. Lenhoff;
and for the Irish Lesbian and Gay Organization et al. by R. Paul
Wickes and Michael
Burt Neuborne, Steven R. Shapiro, and Marjorie Heins filed a
brief for the American Civil Liberties Union as amicus curiae.
560
I
March 17 is set aside for two celebrations in South Boston.
As early as 1737, some people in Boston observed the feast of
the apostle to Ireland, and since 1776 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 command. Washington himself reportedly
drew on the earlier tradition in choosing "St. Patrick" as the
response to "Boston," the password used in the colonial lines on
evacuation day. See J. Crimmins, St. Patrick's Day: Its Celebration
in New York and other American Places, 1737-1845, pp. 15, 19
(1902); see generally 1 H. Commager & R. Morris, The Spirit of
'Seventy Six, pp. 138-183 (1958); The American Book of Days 262-265
(J. Hatch ed., 3d ed. 1978). Although the General Court of
Massachusetts did not officially designate March 17 as Evacuation
Day until 1938, see Mass. Gen. Laws § 6:12K (1992), the City
Council of Boston had previously sponsored public celebrations of
Evacuation Day, including notable commemorations on the centennial
in 1876, and on the 125th anniversary in 1901, with its parade,
salute, concert, and fireworks display. See Celebration of the
Centennial Anniversary of the Evacuation of Boston by the British
Army (G. Ellis ed.
1876); Irish-American Gay, Lesbian and
Bisexual Group of Boston v.
City of Boston et al., Civ.
Action No. 92-1518A (Super. Ct., Mass., Dec. 15, 1993), reprinted
in App. to Pet. for Cert. B1, B8-B9.
The tradition of formal sponsorship by the city came to an end
in 1947, however, when Mayor James Michael Curley himself granted
authority to organize and conduct the St. Patrick's Day-Evacuation
Day Parade to the petitioner South Boston Allied War Veterans
Council, an unincorporated association of individuals elected from
various South Boston veterans groups. Every year since that time,
the Council has applied for and received a permit for the parade,
which at times has included as many as 20,000 marchers and
drawn
561
up to 1 million watchers. No other applicant has ever applied
for that permit.
Id., at B9. Through 1992, the city allowed
the Council to use the city's official seal, and provided printing
services as well as direct funding.
In 1992, a number of gay, lesbian, and bisexual descendants of
the Irish immigrants joined together with other supporters to form
the respondent organization, GLIB, to march in the parade as a way
to 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.
Id., at B3; App. 51. Although the
Council denied GLIB's application to take part in the 1992 parade,
GLIB obtained a state-court order to include its contingent, which
marched "uneventfully" among that year's 10,000 participants and
750,000 spectators. App. to Pet. for Cert. B3, and n. 4.
In 1993, after 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.
"Wacko" Hurley, and the city of Boston, alleging violations of the
State and Federal Constitutions and of the state public
accommodations law, which prohibits "any distinction,
discrimination or restriction on account of ... sexual orientation
... relative to the admission of any person to, or treatment in any
place of public accommodation, resort or amusement." Mass. Gen.
Laws § 272:98 (1992). After finding that "[f]or at least the past
47 years, the Parade has traveled the same basic route along the
public streets of South Boston, providing entertainment, amusement,
and recreation to participants and spectators alike," App. to Pet.
for Cert. B5-B6, the state trial court ruled that the parade fell
within the statutory definition of a public accommodation, which
includes "any place ... which is open to and accepts or solicits
the patronage of the general public
562
and, without limiting the generality of this definition, whether
or not it be ... (6) a boardwalk or other public highway [or] ...
(8) a place of public amusement, recreation, sport, exercise or
entertainment," Mass. Gen. Laws § 272:92A (1992). 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."
App. to Pet. for Cert. B8-B9. The court consequently rejected the
Council's contention that the parade was "private" (in the sense of
being exclusive), holding instead that "the lack of genuine
selectivity in choosing participants and sponsors demonstrates that
the Parade is a public event."
Id., at B6. 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.
Id., at B24. While noting that the
Council had indeed excluded the Ku Klux Klan and ROAR (an
antibusing group), id., at B7, it attributed little significance to
these facts, concluding ultimately that "[t]he only common theme
among the participants and sponsors is their public involvement in
the Parade," id., at B24.
The court rejected the Council's assertion that the exclusion of
"groups with sexual themes merely formalized [the fact] that the
Parade expresses traditional religious and social values," id., at
B3, and found the Council's "final position [to be] that GLIB would
be excluded because of its values and its message, i.
e.,
its members' sexual orientation," id., at B4, n. 5, citing Tr. of
Closing Arg. 43, 51-52 (Nov. 23, 1993). 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."
App. to Pet. for
563
Cert. B24. 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
expressive association would "requir[e] focus on a specific
message, theme, or group" absent from the parade.
Ibid.
"Given the [Council's] lack of selectivity in choosing participants
and failure to circumscribe the marchers' message," the court found
it "impossible to discern any specific expressive purpose entitling
the Parade to protection under the First Amendment."
Id., at
B25. It concluded that the 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."
Id., at B27.
The court held that because the statute did 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.
Id., at B25, citing
Roberts v.
United States Jaycees, 468 U. S. 609, 628-629
(1984). Accordingly, it ruled that "GLIB is entitled to participate
in the Parade on the same terms and conditions as other
participants." App. to Pet. for Cert. B27.1
The Supreme Judicial Court of Massachusetts affirmed, seeing
nothing clearly erroneous in the trial judge's findings
1 The court dismissed the public accommodations law claim
against the city because it found that the city's actions did not
amount to inciting or assisting in the Council's violations of §
272:98. App. to Pet. for Cert. B12-B13. It also dismissed
respondents' First and Fourteenth Amendment challenge against the
Council for want of state action triggering the proscriptions of
those Amendments.
Id., at B14-B22. Finally, the court did
not reach the state constitutional questions, since respondents had
apparently assumed in their arguments that those claims, too,
depended for their success upon a finding of state action and
because of the court's holding that the public accommodation
statutes apply to the parade.
Id., at B22.
564
that GLIB was excluded from the parade based on the sexual
orientation of its members, that it was impossible to detect an
expressive purpose in the parade, that there was no state action,
and that the parade was a public accommodation within the meaning
of § 272:92A.
Irish-American Gay, Lesbian and Bisexual Group of
Boston v.
Boston, 418 Mass. 238,242-248,636 N. E. 2d
1293, 1295-1298 (1994).2 Turning to petitioners' First Amendment
claim that application of the public accommodations law to the
parade violated their freedom of speech (as distinguished from
their right to expressive association, raised in the trial court),
the court's majority held that it need not decide on the particular
First Amendment theory involved "because, as the [trial] judge
found, it is 'impossible to discern any specific expressive purpose
entitling the Parade to protection under the First Amendment.'"
Id., at 249, 636 N. E. 2d, at 1299 (footnote omitted). The
defendants had thus failed at the trial level "to demonstrate that
the parade truly was an exercise of ... First Amendment rights,"
id., at 250, 636 N. E. 2d, at 1299, citing
Clark v.
Community for Creative Non-Violence, 468 U. S. 288, 293, n.
5 (1984), and on appeal nothing indicated to the majority of the
Supreme Judicial Court that the trial judge's assessment of the
evidence on this point was clearly erroneous, 418 Mass., at 250,
636 N. E. 2d, at 1299. 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.
Id., at 251-252, 636 N. E. 2d, at 1300. Finally, the court
rejected the challenge that the public accommodations law was
unconstitutionally vague, holding that this case did not present an
issue of speech and that the law gave persons of
2 Since respondents did not cross-appeal the dismissal of their
claims against the city, the Supreme Judicial Court declined to
reach those claims. 418 Mass., at 245, n. 12, 636 N. E. 2d, at
1297.
565
ordinary intelligence a reasonable opportunity to know what was
prohibited.
Id., at 252,636 N. E. 2d, at 1300-130l.
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."
Id., at 256, 636 N. E.
2d, at 1303. First, he wrote, even if the parade had no message at
all, GLIB's particular message could not be forced upon it.
Id., at 257, 636 N. E. 2d, at 1303, citing
Wooley v.
Maynard, 430
U. S. 705, 717 (1977) (state requirement to display "Live Free
or Die" on license plates violates First Amendment). Second,
according to Justice Nolan, the trial judge clearly erred in
finding the parade devoid of expressive purpose. 418 Mass., at 257,
636 N. E. 2d, at 1303. He would have held that the Council, like
anyexpressive association, cannot be barred from excluding
applicants who do not share the views the Council wishes to
advance.
Id., at 257-259, 636 N. E. 2d, at 1303-1304, citing
Roberts, supra. Under either a pure speech or associational
theory, the State's purpose 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. 418 Mass., at 256, 258, 636 N. E. 2d, at
1302, 1304. 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 of
infringing on the Council's First Amendment rights. Finally, he
found 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
account of its message and a dearth of testimony or documentation
indicating that sexual orientation was the bar to admission.
Id., at 260,636
566
N. E. 2d, at 1304. 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 expressing a message not of the private
organizers' own choosing violates the First Amendment. 513 U. S.
1071 (1995). We hold that it does and reverse.
II
Given the scope of the issues as originally joined in this case,
it is worth noting some that have fallen aside 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.
Kraemer,
334 U. S. 1, 13
(1948); see
Hudgens v.
NLRB, 424 U. S. 507, 513
(1976), respondents originally argued that the Council's conduct
was not purely private, but had the character of state action. 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." Tr. of Oral Arg. 22. In this Court,
then, their claim for inclusion in the parade rests solely on the
Massachusetts public accommodations law.
567
There is no corresponding concession from the other side,
however, and certainly not to the state courts' characterization of
the parade as lacking the element of expression for purposes of the
First Amendment. Accordingly, our review of petitioners' claim that
their activity is indeed in the nature 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. v.
Consumers Union of United States, Inc.,
466 U. S. 485,
499 (1984). The "requirement of independent appellate review ... is
a rule of federal constitutional law," id., at 510, which does not
limit our deference to a trial court on matters of witness
credibility,
Harte-Hanks Communications, Inc. v.
Connaughton, 491 U. S. 657, 688
(1989), but which generally requires us to "review the finding of
facts by a State court ... where a conclusion of law as to a
Federal right and a finding of fact are so intermingled as to make
it necessary, in order to pass upon the Federal question, to
analyze the facts,"
Fiske v.
Kansas, 274 U. S. 380, 385-386
(1927). See also
Niemotko v.
Maryland, 340 U. S. 268, 271
(1951);
Jacobellis v.
Ohio, 378 U. S. 184, 189 (1964)
(opinion of Brennan, J.). This obligation rests upon us simply
because the reaches of the First Amendment 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 constitutional protection. See
Bose
Corp., supra, at 503. 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 ... shall
not be set aside unless clearly erroneous," we are obliged to make
a fresh examination of crucial facts. Hence, in this case, though
we are confronted with the state courts' conclusion that the
factual characteristics of petitioners' activity place it within
the vast realm of nonexpressive conduct, our obligation is to "
'make an independent examina-
568
tion of the whole record,' ... so as to assure ourselves that
th[is] judgment does not constitute a forbidden intrusion on the
field of free expression."
New York Times Co. v.
Sullivan, 376
U. S. 254, 285 (1964) (footnote omitted), quoting
Edwards v.
South Carolina, 372 U. S. 229, 235
(1963).
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." S. Davis, Parades and Power: Street Theatre in
Nineteenth-Century Philadelphia 6 (1986). Hence, we use the word
"parade" to indicate marchers who are making some sort of
collective point, not just 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
parade or demonstration receives no media coverage, it may as well
not have happened."
Id., at 171. 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
marches. In
Gregory v.
Chicago, 394 U. S. 111, 112
(1969), for example, petitioners had taken part in a procession to
express their grievances to the city government, and we held that
such a "march, if peaceful and orderly, falls well within the
sphere of conduct protected by the First Amendment." Similarly, in
Edwards v.
South Carolina, supra, at 235, where
petitioners had joined in a march of protest and pride, carrying
placards and singing The Star Spangled Banner, we held that the
activities "reflect an exercise of these basic constitutional
569
rights in their most pristine and classic form." Accord,
Shuttlesworth v.
Birmingham, 394 U. S. 147, 152
(1969).
The protected expression that inheres in a parade is not limited
to its banners and 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. of Ed. v.
Barnette,
319 U. S. 624,
632 (1943), our cases have recognized that the First Amendment
shields such acts as saluting a flag (and refusing to do so), id.,
at 632, 642, wearing an armband to protest a war,
Tinker v.
Des Moines Independent Community School Dist., 393 U. S. 503, 505-506
(1969), displaying a red flag,
Stromberg v.
California, 283 U. S. 359, 369
(1931), and even "[m]arching, walking or parading" in uniforms
displaying the swastika,
National Socialist Party of America
v.
Skokie, 432
U. S. 43 (1977). As some of these examples show, a narrow,
succinctly articulable message is not a condition of constitutional
protection, which if confined to expressions conveying a
"particularized message," cf.
Spence v.
Washington,
418 U. S. 405,
411 (1974)
(per curiam), would never reach the
unquestionably shielded painting of Jackson Pollock, music of
Arnold Schoenberg, or J abberwocky verse of Lewis Carroll.
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. 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. See Record, Exh. 84 (video). To
be sure, we agree with the state courts that in spite of excluding
some applicants, the Council is rather lenient in admitting
participants. But a private speaker does not forfeit constitutional
protection simply by combining multifarious voices, or by failing
to edit their themes to isolate an exact message as the
exclusive
570
subject matter of the speech. Nor, under our precedent, does
First Amendment protection require a speaker to generate, as an
original matter, each item featured in the communication. Cable
operators, for example, are engaged in protected speech activities
even when they only select programming originally produced by
others.
Turner Broadcasting System, Inc. v.
FCC,
512 U. S. 622,
636 (1994) ("Cable programmers and cable operators engage in and
transmit speech, and they are entitled to the protection of the
speech and press provisions of the First Amendment"). For that
matter, the presentation of an edited compilation of speech
generated by other persons is a staple of most newspapers' opinion
pages, which, of course, fall squarely within the core of First
Amendment security,
Miami Herald Publishing Co. v.
Tornillo, 418
U. S. 241, 258 (1974), as does even the simple selection of a
paid noncommercial advertisement for inclusion in a daily paper,
see
New York Times, 376 U. S., at 265266. The selection of
contingents to make a parade is entitled to similar protection.
Respondents' participation as a unit in the parade was equally
expressive. GLIB was formed for the very purpose of marching in it,
as the trial court found, in order to celebrate its members'
identity as openly gay, lesbian, and bisexual descendants of the
Irish immigrants, 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 parade. App. to Pet. for Cert. B3. The
organization distributed a fact sheet describing the members'
intentions, App. A51, and the record otherwise corroborates the
expressive nature of GLIB's participation, see Record, Exh. 84
(video); App. A67 (photograph). In 1993, members of GLIB marched
behind a shamrock-strewn banner with the simple inscription "Irish
American Gay, Lesbian and Bisexual Group of Boston." GLIB
understandably seeks to communicate its ideas as part of the
existing parade, rather than staging one of its own.
571
B
The Massachusetts public accommodations law under which
respondents brought suit has a venerable history. At common law,
innkeepers, smiths, and others who "made profession of a public
employment," were prohibited from refusing, without good reason, to
serve a customer.
Lane v.
Cotton, 12 Mod. 472,
484-485, 88 Eng. Rep. 1458, 1464-1465 (K. B. 1701) (Holt, C. J.);
see
Bell v.
Maryland, 378 U. S. 226, 298, n. 17
(1964) (Goldberg, J., concurring);
Lombard v.
Louisiana, 373
U. S. 267, 277 (1963) (Douglas, J., concurring). As one of the
19th-century English judges put it, the rule was that "[t]he
innkeeper is not to select his guests[;] [h]e has no right to say
to one, you shall come into my inn, and to another you shall not,
as every one coming and conducting himself in a proper manner has a
right to be received; and for this purpose innkeepers are a sort of
public servants."
Rex v.
Ivens, 7 Car. & P. 213,
219, 173 Eng. Rep. 94, 96 (N. P. 1835); M. Konvitz & T. Leskes,
A Century of Civil Rights 160 (1961).
After the Civil War, the Commonwealth of Massachusetts was the
first State to codify this principle to ensure access to public
accommodations regardless of race. See Act Forbidding Unjust
Discrimination on Account of Color or Race, 1865 Mass. Acts, ch.
277 (May 16, 1865); Konvitz & Leskes,
supra, at 155-156;
Lerman & Sanderson, Discrimination in Access to Public Places:
A Survey of State and Federal Public Accommodations Laws, 7 N. Y.
U. Rev. L. & Soc. Change 215, 238 (1978); Fox, Discrimination
and Antidiscrimination in Massachusetts Law, 44 B. U. L. Rev. 30,
58 (1964). In prohibiting discrimination "in any licensed inn, in
any public place of amusement, public conveyance or public
meeting," 1865 Mass. Acts, ch. 277, § 1, the original statute
already expanded upon the common law, which had not conferred any
right of access to places of public amusement, Lerman &
Sanderson,
supra, at 248. As with many public accommodations
statutes across the Nation, the legislature continued to
572
broaden the scope of legislation, to the point that the law
today prohibits discrimination on the basis of "race, color,
religious creed, national origin, sex, sexual orientation ... ,
deafness, blindness or any physical or mental disability or
ancestry" in "the admission of any person to, or treatment in any
place of public accommodation, resort or amusement." Mass. Gen.
Laws § 272:98 (1992). Provisions like these are well within the
State's usual power to enact when a legislature has reason to
believe that a given group is the target of discrimination, and
they do not, as a general matter, violate the First or Fourteenth
Amendments. See,
e. g.,
New York State Club Assn.,
Inc. v.
City of New York, 487 U. S. 1, 11-16
(1988); Roberts v.
United States Jaycees, 468 U. S.,
at 624
626; Heart of Atlanta Motel, Inc. v.
United
States, 379 U. S.
241, 258-262 (1964). Nor is this statute unusual in any obvious
way, since it does not, on its face, target speech or discriminate
on the basis of its content, the focal point of its prohibition
being rather on the act of discriminating against individuals in
the provision of publicly available goods, privileges, and services
on the proscribed grounds.
C
In the case before us, however, the Massachusetts law has been
applied in a peculiar way. Its enforcement does not address any
dispute about the participation of openly gay, lesbian, or bisexual
individuals in various units admitted to the parade. Petitioners
disclaim any intent to exclude homosexuals as such, and no
individual member of GLIB claims to have been excluded from
parading as a member of any group that the Council has approved to
march. Instead, the disagreement goes to the admission of GLIB as
its own parade unit carrying its own banner. See App. to Pet. for
Cert. B26-B27, and n. 28. Since every participating unit affects
the message conveyed by the private organizers, the state courts'
application of the statute produced an order essentially requiring
petitioners to alter the expressive content
573
of their parade. Although the state courts spoke of the parade
as a place of public accommodation, see,
e. g., 418 Mass.,
at 247-248, 636 N. E. 2d, at 1297-1298, once the expressive
character of both the parade and the marching GLIB contingent is
understood, it becomes apparent that the state courts' application
of the statute had the effect of declaring the sponsors' speech
itself to be the public accommodation. Under this approach any
contingent of protected individuals with a message would have the
right to participate in petitioners' speech, so that the
communication produced by the private organizers would be shaped by
all those protected by the law who wished to join in with some
expressive demonstration of their own. But this use of the State's
power violates the fundamental rule of protection under the First
Amendment, that a speaker has the autonomy to choose the content of
his own message.
"Since
all speech inherently involves choices of what to
say and what to leave unsaid,"
Pacific Gas &
Electric
Co. v.
Public Utilities Comm'n of Cal., 475 U. S. 1, 11 (1986)
(plurality opinion) (emphasis in original), one important
manifestation of the principle of free speech is that one who
chooses to speak may also decide "what not to say," id., at 16.
Although the State may at times "prescribe what shall be orthodox
in commercial advertising" by requiring the dissemination of
"purely factual and uncontroversial information,"
Zauderer
v.
Office of Disciplinary Counsel of Supreme Court of Ohio,
471 U. S. 626,
651 (1985); see
Pittsburgh Press Co. v.
Pittsburgh Comm'n
on Human Relations, 413 U. S. 376, 386-387
(1973), outside that context it may not compel affirmance of a
belief with which the speaker disagrees, see
Barnette, 319
U. S., at 642. Indeed this general rule, that the speaker has the
right to tailor the speech, applies not only to expressions of
value, opinion, or endorsement, but equally to statements of fact
the speaker would rather avoid,
McIntyre v.
Ohio
Elections Comm'n, 514 U. S. 334, 341-342
(1995); Riley v.
National Federation of Blind of N.
c.,
Inc.,
574
487 U. S. 781,
797-798 (1988), subject, perhaps, to the permissive law of
defamation,
New York Times Co. v.
Sullivan, 376 U. S.
254 (1964);
Gertz v.
Robert Welch, Inc., 418 U. S. 323, 347-349
(1974);
Hustler Magazine, Inc. v.
Falwell, 485 U. S. 46 (1988). Nor
is the rule's benefit restricted to the press, being enjoyed by
business corporations generally and by ordinary people engaged in
unsophisticated expression as well as by professional publishers. I
ts point is simply the point of all speech protection, which is to
shield just those choices of content that in someone's eyes are
misguided, or even hurtful. See
Brandenburg v.
Ohio,
395 U. S. 444
(1969);
Terminiello v.
Chicago, 337 U. S. 1 (1949).
Petitioners' claim to the benefit of this principle of autonomy
to control one's own speech is as sound as the South Boston parade
is expressive. Rather like a composer, the Council selects the
expressive units of the parade from potential participants, and
though the score may not produce a particularized message, each
contingent's expression in the Council's eyes comports with what
merits celebration on that day. Even if this view gives the Council
credit for a more considered judgment than it actively made, the
Council 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. The message it
disfavored is not difficult to identify. Although GLIB's point
(like the Council's) is not wholly articulate, a contingent
marching behind the organization's banner would at least bear
witness to the fact that some Irish are gay, lesbian, or bisexual,
and the presence of the organized marchers would suggest their view
that people of their sexual orientations have as much claim to
unqualified social acceptance as heterosexuals and indeed as
members of parade units organized around other identifying
characteristics. The parade's organizers may not believe these
facts about Irish sexuality to be so, or they may object to
unqualified
575
social acceptance of gays and lesbians or have some other reason
for wishing to keep GLIB's message out of the parade. But whatever
the reason, it boils down to the choice of a speaker not to
propound a particular point of view, and that choice is presumed to
lie beyond the government's power to control.
Respondents argue that any tension between this rule and the
Massachusetts law falls short of unconstitutionality, citing the
most recent of our cases on the general subject of compelled access
for expressive purposes,
Turner Broadcasting System, Inc. v.
FCC, 512 U. S.
622 (1994). There we reviewed regulations requiring cable
operators to set aside channels for designated broadcast signals,
and applied only intermediate scrutiny.
Id., at 662.
Respondents contend on this authority that admission of GLIB to the
parade would not threaten the core principle of speaker's autonomy
because the Council, like a cable operator, is merely "a conduit"
for the speech of participants in the parade "rather than itself a
speaker." Brief for Respondents 21. But this metaphor is not apt
here, because GLIB's participation would likely be perceived as
having resulted from the Council's customary determination about a
unit admitted to the parade, that its message was worthy of
presentation and quite possibly of support as well. A newspaper,
similarly, "is more than a passive receptacle or conduit for news,
comment, and advertising," and we have held that "[t]he choice of
material ... and the decisions made as to limitations on the size
and content ... and treatment of public issues ... -whether fair or
unfair-constitute the exercise of editorial control and judgment"
upon which the State can not intrude.
Tornillo, 418 U. S.,
at 258. Indeed, in
Pacific Gas &
Electric, we
invalidated coerced access to the envelope of a private utility's
bill and newsletter because the utility "may be forced either to
appear to agree with [the intruding leaflet] or to respond." 475 U.
S., at 15 (plurality opinion) (citation omitted). The plurality
made the further point that if "the government
576
[were] freely able to compel ... speakers to propound political
messages with which they disagree, ... protection [of a speaker's
freedom] would be empty, for the government could require speakers
to affirm in one breath that which they deny in the next."
Id., at 16. Thus, when dissemination of a view contrary to
one's own is forced upon a speaker intimately connected with the
communication advanced, the speaker's right to autonomy over the
message is compromised.
In
Turner Broadcasting, we found this problem absent in
the cable context, because "[g]iven cable's long history of serving
as a conduit for broadcast signals, there appears little risk that
cable viewers would assume that the broadcast stations carried on a
cable system convey ideas or messages endorsed by the cable
operator." 512 U. S., at 655. We stressed that the viewer is
frequently apprised of the identity of the broadcaster whose signal
is being received via cable and that it is "common practice for
broadcasters to disclaim any identity of viewpoint between the
management and the speakers who use the broadcast facility."
Ibid. (citation omitted); see id., at 684 (O'CONNOR, J.,
concurring in part and dissenting in part) (noting that Congress
"might ... conceivably obligate cable operators to act as common
carriers for some of their channels").
Parades and demonstrations, in contrast, are not understood to
be so neutrally presented or selectively viewed. Unlike the
programming offered on various channels by a cable network, the
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. Practice follows
practicability here, for such disclaimers would be quite curious in
a moving
577
parade. Cf.
PruneYard Shopping Center v.
Robins,
447 U. S. 74, 87
(1980) (owner of shopping mall "can expressly disavow any
connection with the message by simply posting signs in the area
where the speakers or hand billers stand"). 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.
An additional distinction between
Turner Broadcasting and
this case points to the fundamental weakness of any attempt to
justify the state-court order's limitation on the Council's
autonomy as a speaker. A cable is not only a conduit for speech
produced by others and selected by cable operators for
transmission, but a franchised channel giving monopolistic
opportunity to shut out some speakers. This power gives rise to the
Government's interest in limiting monopolistic autonomy in order to
allow for the survival of broadcasters who might otherwise be
silenced and consequently destroyed. The Government's interest in
Turner Broadcasting was not the alteration of speech, but
the survival of speakers. In thus identifying an interest going
beyond abridgment of speech itself, the defenders of the law at
issue in
Turner Broadcasting addressed the threshold
requirement of any review under the Speech Clause, whatever the
ultimate level of scrutiny, that a challenged restriction on speech
serve a compelling, or at least important, governmental object,
see,
e. g., Pacific Gas &
Electric, supra, at
19; Turner Broadcasting, supra, at 662;
United States
v.
O'Brien, 391 U. S. 367, 377
(1968).
In this case, of course, there is no assertion comparable to the
Turner Broadcasting claim that some speakers will be
destroyed in the absence of the challenged law. True, the size and
success of petitioners' parade makes it an enviable vehicle for the
dissemination of GLIB's views, but that fact,
578
without more, would fall far short of supporting a claim that
petitioners enjoy an abiding monopoly of access to spectators. See
App. to Pet. for Cert. B9; Brief for Respondents 10 (citing trial
court's finding that no other applicant has applied for the
permit). Considering that GLIB presumably would have had a fair
shot (under neutral criteria developed by the city) at obtaining a
parade permit of its own, respondents have not shown that
petitioners enjoy the capacity to "silence the voice of competing
speakers," as cable operators do with respect to program providers
who wish to reach subscribers,
Turner Broadcasting, supra,
at 656. Nor has any other legitimate interest been identified in
support of applying the Massachusetts statute in this way to
expressive activity like the parade.
The statute, Mass. Gen. Laws § 272:98 (1992), is a piece of
protective legislation that announces no purpose beyond the object
both expressed and apparent in its provisions, which is to prevent
any denial of access to (or discriminatory treatment in) public
accommodations on proscribed grounds, including sexual orientation.
On its face, the object of the law is to ensure by statute for gays
and lesbians desiring to make use of public accommodations what the
old common law promised to any member of the public wanting a meal
at the inn, that accepting the usual terms of service, they will
not be turned away merely on the proprietor's exercise of personal
preference. When the law is applied to expressive activity in the
way it was done here, its apparent object is simply to require
speakers to modify the content of their expression to whatever
extent beneficiaries of the law choose to alter it with messages of
their own. But in the absence of some further, legitimate end, this
object is merely to allow exactly what the general rule of
speaker's autonomy forbids.
It might, of course, have been argued that a broader objective
is apparent: that the ultimate point of forbidding acts of
discrimination toward certain classes is to produce a society free
of the corresponding biases. Requiring access to a
579
speaker's message would thus be not an end in itself, but a
means to produce speakers free of the biases, whose expressive
conduct would be at least neutral toward the particular classes,
obviating any future need for correction. But if this indeed is the
point of applying the state law to expressive conduct, it is a
decidedly fatal objective. Having availed itself of the public
thoroughfares "for purposes of assembly [and] communicating
thoughts between citizens," the Council is engaged in a use of the
streets that has "from ancient times, been a part of the
privileges, immunities, rights, and liberties of citizens."
Hague v.
Committee for Industrial Organization,
307 U. S. 496,
515 (1939) (opinion of Roberts, J.). Our tradition of free speech
commands that a speaker who takes to the street corner to express
his views in this way should be free from interference by the State
based on the content of what he says. See,
e. g., Police Dept.
of Chicago v.
Mosley, 408 U. S. 92, 95 (1972);
cf. H. Kalven, A Worthy Tradition 6-19 (1988); Fiss, Free Speech
and Social Structure, 71 Iowa L. Rev. 1405, 1408-1409 (1986). The
very idea that a noncommercial speech restriction be used to
produce thoughts and statements acceptable to some groups or,
indeed, all people, grates on the First Amendment, for it amounts
to nothing less than a proposal to limit speech in the service of
orthodox expression. The Speech Clause has no more certain
antithesis. See,
e. g., Barnette, 319 U. S., at
642;
Pacific Gas &
Electric, 475 U. S., at 20. 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.
Far from supporting GLIB, then,
Turner Broadcasting
points to the reasons why the present application of the
Massachusetts law can not be sustained. So do the two other
principal authorities GLIB has cited. In
PruneYard Shopping
Center v.
Robins, supra, to be sure, we
580
sustained a state law requiring the proprietors of shopping
malls to allow visitors to solicit signatures on political
petitions without a showing that the shopping mall owners would
otherwise prevent the beneficiaries of the law from reaching an
audience. But we found in that case that the proprietors were
running "a business establishment that is open to the public to
come and go as they please," that the solicitations would "not
likely be identified with those of the owner," and that the
proprietors could "expressly disavow any connection with the
message by simply posting signs in the area where the speakers or
handbillers stand." 447 U. S., at 87. Also, in
Pacific Gas
&
Electric, supra, at 12, we noted that
PruneYard
did not involve "any concern that access to this area might affect
the shopping center owner's exercise of his own right to speak: the
owner did not even allege that he objected to the content of the
pamphlets .... " The principle of speaker's autonomy was simply not
threatened in that case.
New York State Club Assn. is also instructive by the
contrast it provides. There, we turned back a facial challenge to a
state antidiscrimination statute on the assumption that the
expressive associational character of a dining club with over 400
members could be sufficiently attenuated to permit application of
the law even to such a private organization, but we also recognized
that the State did not prohibit exclusion of those whose views were
at odds with positions espoused by the general club memberships.
487 U. S., at 13; see also
Roberts, 468 U. S., at 627. In
other words, although the association provided public benefits to
which a State could ensure equal access, it was also engaged in
expressive activity; compelled access to the benefit, which was
upheld, did not trespass on the organization's message itself. If
we were to analyze this case strictly along those lines, GLIB would
lose. Assuming the parade to be large enough and a source of
benefits (apart from its expression) that would generally justify a
mandated access provision, GLIB could
581
nonetheless be refused admission as an expressive contingent
with its own message just as readily as a private club could
exclude an applicant whose manifest views were at odds with a
position taken by the club's existing members.
IV
Our holding today 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.
Accordingly, the judgment of the Supreme Judicial Court is
reversed, and the case is remanded for proceedings not inconsistent
with this opinion.
It is so ordered.
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