Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557 (1995).
(This excerpt concerns the status of a parade as expression
protected by the First Amendment. Note the difference between the view
expressed in Hurley and the
view expressed in Spence v.
If there were no reason for a group of people to march from
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, 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."
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 arm band 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 Schonberg, 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. 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 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 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 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. The organization distributed a fact sheet describing the members' intentions, and the record otherwise corroborates the expressive nature of GLIB's participation. 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.