The United States Supreme Court has already held that "compelled access like that ordered in this case both penalizes the expression of particular points of view and forces speakers to alter their speech to conform with an agenda they do not set. . . . The Commission's . . . order also impermissibly requires appellant to associate with speech with which appellant may disagree." Pacific Gas, 475 U.S. at 9, 15. That, however, is exactly what the City defendants are trying to do by requiring the inclusion of ILGO in the New York St. Patrick's Day Parade.
This is not to say that a governmental regulation may never restrict a parade. A municipality may constitutionally restrict the right to use the public streets, as they must exercise a great deal of control over traffic regulation and public safety. Shuttlesworth, 394 U.S. at 152. Such restrictions, however, may seek to regulate only the time, place and manner of a parade, so long as these restrictions "are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information." Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989) (citing Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293 (1984)). Additionally, incidental restrictions on speech have been upheld where the purpose of the offending regulation is unrelated to the content of the expression. Ward, 491 U.S. at 781. The controlling inquiry in such cases focuses on whether the government has regulated the speech because it disagrees with its content. Id. Thus, if the government's purpose underlying the regulation is justified without reference to the content of the regulated speech, then the incidental infringement of the First Amendment is constitutional, notwithstanding disparate impact. Id.
Here the City has attempted to change the message of the Parade and the way that message would be conveyed. The imposition of such conditions can hardly be confused with the permissible restrictions that regulate time, place or manner. Thus, because there is no "content neutral" justification for the City's actions which could excuse the infringement, they violate the First Amendment.
The AOH also raises the argument that the activities of the City defendants have violated the AOH's right to freedom of association under the First Amendment. There may well be substance to this argument.
Implicit in the right to engage in activities protected by the First Amendment is a corresponding right to associate with whomever one chooses. See Roberts v. United States Jaycees, 468 U.S. 609, 622 (1983); Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974); Abood v. Detroit Bd. of Educ., 431 U.S. 209, 233-34 (1977). This freedom of association embraces the concomitant right not to associate with whomever one chooses. See Roberts, 468 U.S. at 623 (citing Abood, 431 U.S. at 234-35).
I find it unnecessary, however, to rule on this issue.
The AOH also argues that the City defendants have violated their religious freedom. I am in no way ruling on that particular issue nor do I believe that anyone can properly rule on it in the present state of this record.
Counsel have also directed my attention to a recent decision from a Massachusetts Superior Court regarding the Boston St. Patrick's Day/Evacuation Day Parade. Irish American Gay, Lesbian, and Bisexual Group of Boston, et al. v. City of Boston, et al., Superior Court of Mass., Suffolk County, Civ. No. 92-1519 (Feb. 19, 1993). In the Boston case, the Court granted the Irish American Gay, Lesbian, and Bisexual Group of Boston an injunction to prevent the defendants from interfering with their participation in the parade. It is argued that this decision should persuade me to enforce the City defendants' order requiring the inclusion of ILGO in the AOH Parade.
The Boston Parade celebrates not only St. Patrick's Day, but also, Evacuation Day. Evacuation Day commemorates the March 17, 1776 departure of British troops from Boston. The parade conveys a general celebratory message in general support of "traditional values."
Although the Court pressed counsel to articulate the 'views' or 'message' [sought to be] expressed by means of the parade, counsel could say nothing beyond a litany of 'traditional values,' which included the Red Sox and apple pie.
Memorandum and Order of the Court at P 2. The fact that this "traditional values," multi-purpose parade requires "detailed participation by city agencies in planing and execution" clearly illustrates the civic nature of the parade. From the Order of the Massachusetts Court, it appears that last year the exact same problem was before the Court and was resolved in the same way. No problem was caused thereby and no appeal was taken from the Order. In light of these factors, the Court held that the defendant permit-holders were "the custodians of a civic celebration."
The AOH and the Parade Committee, on the other hand, are private sponsors of the New York St. Patrick's Day Parade and seek to convey a real message in a parade devoted solely to celebrating St. Patrick's Day with minimal city involvement. The AOH, unlike the Boston sponsors, most certainly are not the "custodians of a civic celebration." I find this decision to be totally inapposite to the instant case.
In sum, in the case at bar involving only the New York St. Patrick's Day Parade, this court holds that the ruling of the City's Human Rights Commission is violative of the First Amendment in two aspects: (1) by rejecting the message that the AOH claimed for the Parade and by substituting its own version of what the Commission thought the message of the Parade was or should be, the City defendants have attempted to dictate what the Parade sponsors would think; and, (2) by forcing the inclusion of ILGO in the parade, the Commission sought to dictate how the Parade sponsors would express their thoughts. Such activity (telling citizens what they must think and how they must express themselves) is something one would expect from the "Thought Police" described by George Orwell. The humor of naming the thought police the "Human Rights Commission" is particularly Orwellian.
This court does not mean to suggest that the members of the City Human Rights Commission intentionally set out to violate the First Amendment to the Constitution. Surely, they are good persons, motivated by good intentions. But it is the American way for political leaders to seek to convince citizens of the correctness of some view by persuasion and not by fiat.
This court holds no brief for either side in this controversy. However, everyone should recognize that the undermining of the freedom of any individual is the undermining of the freedoms of us all. See Collin v. Smith, 578 F.2d 1197, 1210 (7th Cir. 1978), cert. denied, 439 U.S. 916 (1978). Suffice it to say that job of this court is to uphold the Constitution of the United States and that is all I am trying to do.
Perhaps, because of the haste with which this case was brought on, without even formal motion papers, or the time pressure caused by the fact that the date for the Parade is so close at hand, no one has discussed the relief which should be granted. The demand in the Complaint requests this court to:
(a) Preliminarily and permanently enjoin City defendants from continuing the acts, practices, and policies complained of herein which violate plaintiff's right to freedom of speech, expression, association and free exercise of religion as guaranteed by the First and Fourteenth Amendments to the United States Constitution;