Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston
Facts
The South Boston Allied War Veterans Council had long organized Boston's St. Patrick's Day-Evacuation Day Parade under a city permit. GLIB, an organization formed to march as openly gay, lesbian, and bisexual descendants of Irish immigrants, sought to participate as its own unit carrying its own banner, but the Council refused to admit it in 1993. GLIB sued under Massachusetts's public accommodations law, and the state courts ordered that GLIB be allowed to participate on the same terms as other groups. In the Supreme Court, respondents relied solely on the state public accommodations law, not on any claim of state action.
Issue
May a state, through its public accommodations law, require private organizers of an expressive parade to include a group carrying a message the organizers do not wish to convey? More specifically, does compelled inclusion of GLIB as a parade unit violate the parade organizers' First Amendment rights?
Rule
A parade is expressive activity protected by the First Amendment, even without a narrow or particularized message. Because a private speaker has autonomy to choose the content of its own expression, including what not to say, the state may not compel the speaker to include another expressive unit when that inclusion alters the expressive content of the speaker's message, absent some further legitimate end beyond forcing modification of the speech itself.
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A state court rules that the parade is not protected speech because it lacks a narrow, particularized message. Which is the best constitutional assessment?