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Subject: Re: St Patrick's Day Parade - the Supreme Court ruling
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Summary: The entire ruling

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by Matthew Gaylor ([email protected]) on June 19, 1995.

Subject:        Supreme Court decision 94-749 -- Syllabus


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NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

HURLEY et al. v. IRISH-AMERICAN GAY,
LESBIAN AND BISEXUAL GROUP OF BOSTON 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 unincorporat-
 ed 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 prohib-
 iting 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 expres-
 sive 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 Amend-
 ment.  Pp. 8-24.
  (a)  Confronted with the state courts' conclusion that the factual
characteristics of petitioners' activity place it within the realm of
non-expressive 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 of free expres-
sion.  See, e.g., New York Times Co. v. Sullivan, 376 U. S. 254, 285.
Pp. 8-10.
  (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. 10-13.
  (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. 13-14.
  (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 expres-
sion 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. ___.
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 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. 14-23.
418 Mass. 238, 636 N. E. 2d 1293, reversed and remanded.
 Souter, J., delivered the opinion for a unanimous Court.






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NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports.  Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D.C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
--------
No. 94-749
--------
JOHN J. HURLEY and SOUTH BOSTON ALLIED
WAR VETERANS COUNCIL, PETITIONERS
v. IRISH-AMERICAN GAY, LESBIAN
AND BISEXUAL GROUP OF
BOSTON, etc., et al.
on writ of certiorari to the supreme judicial
court of massachusetts
[June 19, 1995]

  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.

                            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.  Wash-
ington 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.S. Commager & R.
Morris, The Spirit of 'Seventy Six 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. 92-1516 (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 Coun-
cil, 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 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.
  1992 was the year that 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 accommo-
dations law, which prohibits -any distinction, discrimina-
tion 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.  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 specta-
tors 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 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.  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 admit-
ted 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 formal-
ized [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
Cert. B24.  The court rejected the notion that GLIB's
admission would trample on the Council's First Amend-
ment 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] constitution-
ally 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 discrimi-
nation based on sexual orientation, any infringement on
the Council's right to expressive association was only
-incidental- and -no greater than necessary to accom-
plish the statute's legitimate purpose- of eradicating
discrimination.  Id., at B25, citing Roberts v. United
States Jaycees, 468 U. S. 609, 628-629 (1984).  Accord-
ingly, it ruled that -GLIB is entitled to participate in
the Parade on the same terms and conditions as other
participants.-  Id., at B27.
  The Supreme Judicial Court of Massachusetts af-
firmed, seeing nothing clearly erroneous in the trial
judge's findings 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).  Turning to peti-
tioners' 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 defend-
ants 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, ibid.  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 accom-
modations law was unconstitutionally vague, holding
that this case did not present an issue of speech and
that the law gave persons of ordinary intelligence a
reasonable opportunity to know what was prohibited.
Id., at 252, 636 N. E. 2d, at 1300-1301.
  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 Amend-
ment.-  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.  Ibid.  He would have held that the
Council, like any expressive 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 v. United
States Jaycees, 468 U. S. 609 (1984).  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.  Id., 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 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. ___ (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.  Al-
though 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), respond-
ents 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, respond-
ents 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, respond-
ents' 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.
  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
non-expressive conduct, our obligation is to -`make an
independent examination 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 bystand-
ers 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 expressive-
ness 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, 372 U. S. 229, 235
(1963), 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 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 Amend-
ment shields such acts as saluting a flag (and refusing
to do so), id., at 632, 642, wearing an arm band to
protest a war, Tinker v. Des Moines Independent Com-
munity 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 Sch-nberg, or Jabberwocky 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 exclu-
sive 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. ___, ___ (1994) (slip op., at 11) (-Cable
programmers and cable operators engage in and trans-
mit 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 compila-
tion 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 265-266.  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 immi-
grants, 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; 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.

                            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 prohib-
ited 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 Massachu-
setts 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 155-56; L.G.
Lerman & A. 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); F. 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 & Ander-
son, supra, at 248.  As with many public accommoda-
tions statutes across the Nation, the legislature contin-
ued to 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 accommo-
dation, resort or amusement.-  Mass. Gen. Laws 272:98.
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. 609,
624-626 (1984); 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.  The 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 disagree-
ment 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 of their parade.  Although the state
courts spoke of the parade as a place of public accommo-
dation, 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 adver-
tising- 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. ___, ___ (1995) (slip op., at 6-7);
Riley v. National Federation of Blind of N.C., Inc., 487
U. S. 781, 797-798 (1988), subject, perhaps, to the
permissive law of defamation, New York Times, 376
U. S. 254; 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 unsophisti-
cated expression as well as by professional publishers.
------ Here the Libernet posting was broken into two parts ------
Its 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 contin-
gent'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 communica-
tion 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 unquali-
fied 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 unconstitution-
ality, citing the most recent of our cases on the general
subject of compelled access for expressive purposes,
Turner Broadcasting, 512 U. S. ___.  There we reviewed
regulations requiring cable operators to set aside
channels for designated broadcast signals, and applied
only intermediate scrutiny.  Id., at ___ (slip op., at 38).
Respondents contend on this authority that admission of
GLIB to the parade would not threaten the core princi-
ple 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 Respondent 21.  But this metaphor is not apt
here, because GLIB's participation would likely be
perceived as having resulted from the Council's custom-
ary 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) (citation omitted).
The plurality made the further point that if -the
government [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 ___ (slip op., at 31).  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. (slip
op., at 31) (citation omitted); see id., at ___ (slip op., at
11) (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 some-
thing 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 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 handbillers 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 presenta-
tions 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 speak-
ers.  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 chal-
lenged 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 ___ (slip op., at 38); United States v. O'Brien,
391 U. S. 367, 377 (1968).
  In this case, of course, there is no assertion compara-
ble 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, 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 ___ (slip op.,
at 32).  Nor has any other legitimate interest been identi-
fied in support of applying the Massachusetts statute in
this way to expressive activity like the parade.
  The statute, Mass. Gen. Laws 272:98, 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 discrimi-
natory treatment in) public accommodations on pro-
scribed 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 forbid-
ding acts of discrimination toward certain classes is to
produce a society free of the corresponding biases.
Requiring access to a 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 Department of Chicago v.
Mosley, 408 U. S. 92, 95 (1972); cf. H. Kalven, Jr., A
Worthy Tradition 6-19 (1988); O. 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 ortho-
dox 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, 447 U. S. 74, to be sure, we 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.-  Id., 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 Association 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 recog-
nized 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 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 commit-
ment 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 remanded for
proceedings not inconsistent with this opinion.

                                      It is so ordered.




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