Case: 21-51178
Document: 00516474571
Page: 25
Date Filed: 09/16/2022
No. 21-51178
The fourth case is Hurley. GLIB, an organization of Irish-American
gay, lesbian, and bisexual individuals, sought to march in a St. Patrick’s Day
parade in Boston. 515 U.S. at 561. The parade was organized by a private
group, the South Boston Allied War Veterans Council (“Council”). Id. at
560. The Council refused to admit GLIB, citing “traditional religious and
social values.” Id. at 562 (quotation omitted). But the Supreme Judicial Court
of Massachusetts held that the parade was a public accommodation under
state law, so the Council had to let GLIB participate. Id. at 564. The Council
argued that this application of Massachusetts’s public accommodation law
violated the First Amendment, and the Supreme Court agreed. Id. at 566.
The Court concluded that the parade was a “form of expression” that
receives First Amendment protection. Id. at 568. That’s because “[r]ather
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.” Id. at 574. And it didn’t matter that the
Council was “rather lenient in admitting participants,” because “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 subject matter of the speech.” Id. at 569–70.
voluntarily opened his property up to the public, whereas PG&E “has never opened up its
billing envelope to the use of the public.” Id. at 22.
Second, in PruneYard, the speech of the shopping mall owner was not “hindered
in the slightest” by the public’s pamphleteering right. Id. at 24. PG&E, by contrast,
involved “a forum of inherently limited scope,” such that the State’s appropriation of that
forum for a third party’s use necessarily curtailed PG&E’s ability to speak in that forum.
Ibid. And this interference with PG&E’s speech could not be justified by the State’s goal
of “subsidiz[ing] . . . another speaker chosen by the State.” Ibid.
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