Of all the cases decided in 1995 by the U.S. Supreme Court, one seems certain to influence the legal rules governing the Internet. While Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston (GLIB) addresses neither computers nor electronic communications, the principles underlying the decision will be cited in years to come as authoritative guides to the resolution of "free speech" questions about the Net.
In a nutshell, GLIB asked to be included within the Boston St. Patrick's Day parade, with the right to carry its own banner and thereby project its own identity. The parade organizers refused. GLIB sued the parade organizers and won in a Massachusetts state court, and the decision was upheld by the Supreme Judicial Court of Massachusetts. The parade organizers appealed to the U.S. Supreme Court, claiming that their First Amendment rights were abridged by the orders of the Massachusetts courts. In a unanimous opinion, the Supreme Court agreed with the parade organizers and found that the Commonwealth of Massachusetts had violated the parade organizers' constitutional rights to freedom of speech.
A St. Patrick's Day parade has been held in Boston for some 200 years, although the city's sponsorship of the parade ended in 1947. In that year, the South Boston Allied War Veterans Council began organizing the parade, under a parade permit granted by the city. The Court noted that, at least up until the case was heard, no other group had ever applied for a permit to conduct the St. Patrick's Day parade in Boston.
In the course of the trial, the Council was found to be a "non-governmental" group of individuals who were elected to the Council from various veterans groups in South Boston. GLIB originally argued that, due to the municipal licensing scheme and the long association between the Council and the city, the Council should not be viewed as purely a "private" organization. It furthermore argued that the actions of the Council should be treated as "state action" conducted by the City of Boston. However, the trial court found that the Council was in fact a private organization, and GLIB did not press the matter in the higher courts. That central issue in the controversy, decided early in favor of the parade's organizers and finding them "private" rather than "state" actors, would ultimately influence the outcome in the U.S. Supreme Court.
The First Amendment, of course, protects against the Government's abridging the free speech rights of citizens; as a corollary, the First Amendment does not prevent non-governmental actors from denying others the right to "free speech." The First Amendment is a restriction on government, and only on government. Therefore, GLIB could not rely on any First Amendment arguments in the courts of Massachusetts; however, the trial court accepted GLIB's other argument that the parade organizers had violated the state public accommodation laws, which prohibit "any discrimination or restriction on account of . . . sexual orientation . . . relative to the admission of any person to, or treatment in any place of public accommodation. . . ."
Having dodged GLIB's attempt to characterize the parade as a "state-sponsored" activity, the parade organizers vigorously asserted that the application of the Massachusetts public accommodations law amounted to a state compulsion to sponsor or associate with certain views, in violation of the First Amendment. The Massachusetts courts, they claimed, were forcing the organizers to promote a belief and to foster a position that the Council found objectionable. The Massachusetts courts, however, had concluded that the St. Patrick's Day parade did not have any "specific expressive purpose" which entitled it to protection under the First Amendment, and found that the Council had not shown that the parade "truly was an exercise of First Amendment rights." In short, the state courts did not believe the organizers' claims were articulate enough, or of sufficient content and definition, to merit the protection of the First Amendment.
The U.S. Supreme Court disagreed, and found that "parades are a form of expression, not just motion." Noting the long tradition of protest parades and recalling the use of the march as an elegant means of "expression" for the civil rights movement, the Court pronounced that a parade may "reflect an exercise of these basic constitutional rights in their most pristine and classic form." The parade organizers, like the GLIB members, sought to express themselves through the parade; both groups wished to offer a point of view. Even though the point of view of the organizers was vague and inarticulate, the organizers were at least clear that they did not want to promote the views of GLIB. The Court thereby recognized that the "negative" rights of free speech - such as the right to keep silent, and the right not to associate with an unshared point of view - are as valid and valuable as their positive counterparts.
The Supreme Court found that the Massachusetts courts had, in essence, ordered the parade organizers to alter the expressive content of their parade. The state courts had effectively declared the expressive content of the parade to be a "public accommodation" which was covered under the Massachusetts law. This amounted to regulating the speech of private individuals for politically approved ends, and it violated the Council's First Amendment rights.
The Massachusetts decision, in the Court's view, would allow any statutorily protected group with a message to participate in the speech of the organizers, so that the communication produced by the organizers would be shaped (and diluted) by all those covered under the Massachusetts statute. The Court's conclusion on this point was clear and decisive: "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."
The Court's decision will no doubt fortify those who provide content or a forum on the Internet. The Hurley case makes it clear that certain rights of admission, membership and content belong to any "private" forum, i.e. to a forum which is not controlled or operated by the government. Such a forum need not be "exclusive" or "secret" to have these fundamental rights; indeed, the forum must simply be a non-government one. As long as the forum is "private" in the required sense, then no demand for the admission of a person, group or point of view (or even for "equal time") needs to be honored. Regardless of any noble motives held by the state authorities, as the Court has noted, the state's "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."
Edmund B. (Peter) Burke practices intellectual property and information technology law in Atlanta with Sutherland, Asbill & Brennan, a law firm with offices in Atlanta, Austin, New York and Washington, D.C. [email protected]