When we look at Irish legal history, there is as much to be learned from the appearance of ‘Irishness’ in the case law of countries to which large numbers of Irish people have emigrated as from cases decided in the Irish courts. On June 19, 1995 the United States Supreme Court handed down judgment in Hurley v. Irish-American Gay, Lesbian and Bisexual Association of Boston. The Association (GLIB) sought permission to march in the Boston St. Patrick’s Day parade. When they were refused, they sued the organisers, alleging violations of the State and Federal Constitutions and of the state public accommodations law, which provides that individuals shall not be refused permission to enter any public accommodation – such as a parade – on grounds of sexual orientation. That law had a tradition going back to the end of the Civil War and has particular resonance in African-American history. The political debate was expressed in terms of interpretation of the purpose of the parade: was it organised to celebrate ‘traditional social and religious values’, nationalism and a particular version of the history of Irishness in America, or to celebrate Irishness in all its diversity (see this year’s controversy about the New York parade here)? The legal question, however, was whether the parade was not simply an event or place, but was protected speech for the purposes of the First Amendment, so that using the public accommodations law to compel the private organisers to include GLIB’s contribution within their overall message would violate their freedom of speech. Justice Souter, sadly, agreed.

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.”… 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. … Parades are thus a form of expression, not just motion… 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…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

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Since every participating unit affects the message conveyed by the private organizers, the state courts’ application of the [public accommodations] 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 accommodation, 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.

[…] [The] 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…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…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.

For a very interesting contrast, see Irish Subcommittee v. Rhode Island Heritage Com’n