Hurley v. Irish-American: Ruling, Compelled Speech, Later Cases

In Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557 (1995), the Supreme Court unanimously held that Massachusetts could not use its public accommodations law to force the private organizers of Boston’s St. Patrick’s Day parade to include a marching contingent whose message the organizers did not want to carry. A parade is a form of expression, the Court said, and the First Amendment protects a speaker’s right to decide what to say and what to leave out.¹

How the Case Reached the Supreme Court

The South Boston Allied War Veterans Council, an unincorporated group elected from local veterans organizations, ran Boston’s annual St. Patrick’s Day-Evacuation Day Parade. In 1992, a newly formed group called the Irish-American Gay, Lesbian and Bisexual Group of Boston, or GLIB, asked to march under its own banner. The Council said no.¹

When the Council refused again in 1993, GLIB and several members sued in state court, naming the Council, its leader John J. Hurley, and the city of Boston. Their claim rested on Massachusetts General Laws Chapter 272, Section 98, the state’s public accommodations statute, which bars discrimination based on sexual orientation in places of public accommodation.²

The Massachusetts courts treated the parade as a public accommodation because it moved along public streets and was open to the general public, and they ordered the Council to include GLIB. The Council appealed, arguing that the state was using an anti-discrimination law to dictate the content of a private expressive event.

The Ruling

The Supreme Court reversed 9-0. Justice David Souter wrote for the Court, holding that the state’s order violated the First Amendment because it forced private speakers to carry a message they had chosen not to convey. The judgment vacated the state court orders that had required GLIB’s inclusion and restored the Council’s control over the parade lineup.¹

Why Compelling Inclusion Was Compelled Speech

The reasoning starts with a simple premise: a parade is speech. Marchers exist to make “some sort of collective point, not just to each other but to bystanders along the way,” and each unit contributes to the overall message the organizers assemble.¹

Massachusetts had argued that because the Council let in a wide range of participants and the parade had no single theme, it was too unfocused to count as expression. The Court rejected that. A speaker does not “forfeit constitutional protection simply by combining multifarious voices, by failing to edit their themes to isolate a specific message,” or by using material it did not create itself. An eclectic parade is still a parade, and its organizers still have the right to say no to a message they do not want.¹

Forcing the Council to include GLIB’s banner would “alter the parade’s expressive content,” Justice Souter wrote, and that runs against the basic rule that a speaker chooses what to say and what to leave out. The Court did not reach whether the Council’s choice was admirable or correct. As the opinion put it, “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.”¹

The Line the Case Draws

Hurley is narrower than a right to discriminate. The Court compared the Council to a newspaper editor choosing what to publish, not to a store owner deciding whom to serve. Public accommodations laws still apply to ordinary commercial businesses. The First Amendment problem arises only when the government is dictating the content of expression, whether the expression is a parade, a publication, or something similar.

The opinion also draws a line between identity and message. The Council’s protected right was to exclude a viewpoint, not to exclude people because they were gay. Including GLIB’s banner would have injected a specific message into the parade; that was the constitutional injury. GLIB’s members were themselves free to march in other contingents. That identity-versus-message distinction has shaped nearly every case that has cited Hurley since.

How Later Cases Have Used Hurley

Hurley’s compelled-speech reasoning has anchored several major First Amendment decisions.

Boy Scouts of America v. Dale (2000)

The Court held that New Jersey’s public accommodations law could not force the Boy Scouts to retain an openly gay scoutmaster, because compelled inclusion would interfere with the organization’s expressive message. The majority relied directly on Hurley, and noted that a group does not need to exist for the purpose of disseminating a particular message to claim First Amendment protection. The St. Patrick’s Day parade was not organized around sexual orientation either, yet its organizers still had the right to keep that topic out.³

303 Creative v. Elenis (2023)

The Court cited Hurley in holding that Colorado could not require a website designer to create expressive designs for same-sex weddings that conflicted with the designer’s beliefs. Public accommodations statutes, the majority said, “can sweep too broadly when deployed to compel speech,” citing Hurley and Dale as authority. The decision carried the compelled-speech principle from parades and membership groups into commercial creative work.⁴

Moody v. NetChoice (2024)

State laws restricting how social media companies moderate user content ran into Hurley. The Court explained that a platform’s curation of third-party content is itself expressive, drawing the parade analogy directly: because “every participating unit affects the message,” ordering inclusion would “alter the expressive content.” Just as the Veterans Council chose its lineup, platforms choose their feeds, and the government cannot override either.⁵

What Happened in Boston

The ruling gave the Veterans Council the legal right to exclude GLIB, and the Council continued to bar LGBTQ groups from the parade for the next two decades. In 2015, organizers accepted OUTVETS, a gay veterans group, followed by Boston Pride. No court order was involved. Both groups applied and received acceptance letters, and the organizers exercised the same autonomy Hurley had protected, this time in the opposite direction.

1
Justia U.S. Supreme Court Center. Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston, Inc., 515 U.S. 557 (1995)
2
General Court of Massachusetts. Massachusetts Code Chapter 272 Section 98 – Discrimination in Admission to, or Treatment in, Place of Public Accommodation
3
Justia U.S. Supreme Court Center. Boy Scouts of America v. Dale, 530 U.S. 640 (2000)
4
Justia U.S. Supreme Court Center. 303 Creative LLC v. Elenis, 600 U.S. ___ (2023)
5
Supreme Court of the United States. Moody v. NetChoice, LLC (2024)