Excerpts from Judge Kevin Duffy’s opinion with an introduction by Special counsel Nancy Gannon
On February 26, 1993, U.S. District Judge Kevin Thomas Duffy released a memorandum opinion and order in New York County Board of Ancient Order of Hibernians v. David Dinkins, et al. Judge Duffy ruled the Ancient Order of Hibernians (AOH) was entitled to the permit to conduct the 1993 New York St. Patrick’s Day Parade and ordered the city of New York not to interfere.
Because of the enormous interest generated by this controversy and Judge Duffy’s clear exposition of the First Amendment law of free speech, the League is printing excerpts of Judge Duffy’s decision as this month’s feature article in the Catholic League Newsletter.
In the interest of clarity, the legal citations have been removed from the reprinted opinion. If anyone wishes a copy of the opinion in its entirety, please contact the League’s Publication Office.
The history of this case is long and involved, stretching back through several years and as many court determinations. The opinion began with a seventeen page section presenting the facts. Judge Duffy described the difficulty in “get[ting] a handle on the facts and the real position of the parties” and spoke of the attoneys “acting as navigators attempting to get a fix on their location while aboard a melting ice flow in the midst of a tempest.”
Here is a brief summary of the facts. In October of 1990, the Irish Lesbian and Gay Organization (ILGO) requested permission to march under its own banner in the 1991 Parade. The Parade Committee denied ILGO’s request, but a compromise was reached whereby ILGO members were permitted to march as guests of a Hibernian unit.
In 1992, the permit for the Parade was awarded to the State Branch of the Ancient Order of Hibernians (State AOH). Litigation in the state courts was settled with the AOH conducting the Parade pursuant to the permit issued to the State AOH.
On January 23, 1992, the New York City Commission on Human Rights (HRC) began a proceeding alleging that AOH discriminated against ILGO.
On March 13, 1992, the Administrative Law Judge issued a recommended decision concluding that although “the Parade was a public accommodation subject to the Human Rights Law” and that the AOH “had violated the Human Rights Law by excluding ILGO in 1991,” nevertheless the U.S. Constitution overrides statutory law and “the application of the City Human Rights statute to the Parade would violate the First Amendment rights of the Parade sponsors.” The Hibernians had won.
ILGO was prohibited from marching as an affiliated unit in the 1992 Parade, but was permitted to hold its own demonstration from 60th Street to 66th Street on Fifth Avenue just prior to the Parade.
On October 27, 1992 the City HRC rendered a final decision and order adopting the recommended decision and order with respect to the first two holdings thereof, but ruled that the application of the Human Rights Law would not violate AOH’s First Amendment rights. So the Hibernians lost Round One of the 1993 parade face-off Beirne v. New York City Commission on Human Rights was commenced in the Supreme Court of the State of New York to review the decision ofthe HRC. The case was argued on January 5, 1993 before Justice Schlesinger who took the matter under advisement, promising a decision during the week of January 18, 1993. On January 8, 1993 the Parade permit was awarded to the St. Patrick’s Day Parade Committee, Inc., a rebel, Dinkins-created “Irish” group. Justice Schlesinger then ruled that the question before her court was moot.
Accordingly, on January 15, 1993 the AOH sued for injunctive relief under the Civil Rights Act and the First and Fourteenth Amendments of the Constitution, seeking to enjoin the City from depriving the AOH of its rights by refusing to issue to AOH the permit to conduct the 1993 St. Patrick’s Day Parade.
The main problem with the logic of the decision of the City’s Human Rights Commission is that it starts the analysis at the wrong end. The first question that should have been considered is not whether the New York St. Patrick’s Day Parade is a public accommodation, but whether the Parade and its message constitutes speech protected by the First Amendment guarantee of Freedom of Speech. Insofar as a parade constitutes protected free speech, it cannot be a public accommodation.
A parade is, by its nature, a pristine form of speech. In parades, people gather together for the purpose of expressing their message. The public thoroughfares of our nation are the public fora in which the issues of the day can be debated and where individuals seek to engage in basic expressive activity, such as parading. Every parade is designed to convey a message. As such, a parade organized by a private sponsor is the quintessential exercise of the First Amendment right of freedom of expression.
The First Amendment guarantees an individual the right to free speech, “a term necessarily comprising the decision of both what to say and what not to say.” In exercising this right, the message intended to be conveyed by a parade sponsored by a private organization is to be determined by the parade sponsor and not by the state or the city. To hold otherwise would give local government the right of censorship over the thoughts and speech of the people.
The message that the AOH, as Parade sponsor, wishes to convey is to honor the patron saint of Ireland and to proclaim their allegiance to the Roman Catholic Church and its teachings.
On the other hand, the Administrative Law Judge rejected this and found that the Parade is a place of public accommodation. As to the message of the Parade, the Administrative Law Judge and the City Human Rights Commission determined that:
The Parade is also a civic celebration, billed as the “largest civilian annual parade in the world” and is organized for the pleasure of all New Yorkers. It draws over 150, 000 marchers and over two million spectators.
… [T]he Parade as “an American institution” which “celebrates the fact that all Americans, native and immigrant alike, enjoy the freedom of the City on the streets of New York and, by implication, throughout our great land.” The organizers operate the Parade for the benefit of all New Yorkers and are concerned that “the total Parade...remain large in numbers, orderly, and colorful in order to hold the respect and admiration of the citizens of New York, retain their good will and continue to have them as its supporters.”
In restating the message of the Parade the Human Rights Commission went far beyond a mere re-articulation of it. No one has suggested that the Parade sponsors and the representatives are so bereft of fluency in the English language that, if they believed that the message of the Parade should be “secular” or “American institution” or a “a celebration of freedom” or even traditional values, baseball and apple pie, the Commission would have had to make the statement for them. In fact the message was dramatically changed in content. This the City defendants cannot do without violating the First Amendment rights of the Parade sponsors. This is so fundamental as not to require citation.
It may well be helpful, however, to remind the parties of what the United States Supreme Court held in a slightly different context:
The First Amendment protects the right of individuals to hold a point of view different from the majority and to refuse to foster, in the way [the State] commands, an idea they find morally objectionable.
The manner and means by which the message is conveyed is also a matter of constitutionally protected free speech. The AOH and the Parade sponsors have made it abundantly clear that they are unwilling to accept ILGO as a separate contingent in the Parade. Indeed, they seem willing to abandon the Parade to avoid that situation. Yet, The City Human Rights Commission has ordered them to “include the Irish Lesbian and Gay Organization in the parade under its own banner.”
In so doing the City defendants have violated the Parade sponsor’s rights to free speech. The United States Supreme Court has already held that “[c]ompelled 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.” 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 . Such restriction, 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.” Additionally, incidental restrictions on speech have been upheld where the purpose of the offending regulation is unrelated to the content of the expression. The controlling inquiry in such cases focuses on whether the government has regulated the speech because it disagrees with its content. 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.
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 in 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 theCity 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. This freedom of association embraces the concomitant right not to associate with whomever one chooses.
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. 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.”
The fact that this “traditional values,” multi-purpose parade requires “detailed participation by city agencies in planing (sic) 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. Suffice it to say that the job of this court is to uphold the Constitution of the United States and that is all I am trying to do.
If it were not for the intervention of the patently unconstitutional Human Rights Commission decision in this matter, the AOH would have the permit to conduct the 1993 St. Patrick’s Day Parade. It is entitled to that as preliminary relief, along with an order directing the City not to interfere with the conduct of the AOH’s 1993 New York St. Patrick’s Day Parade by requiring the inclusion of any contingent which has not been approved by the AOH and the Parade Committee. This order is preliminary in nature and is intended to cover only the 1993 New York St. Patrick’s Day Parade.