South Boston Allied War Council v. City of Boston

• Decision Date: 29 December 2003
• Docket Number: No. CIV.A. 03-10554-RBC<SMALL><SUP>1</SUP></SMALL>.,CIV.A. 03-10554-RBC<SMALL><SUP>1</SUP></SMALL>.
• Citation: 297 F.Supp.2d 388
• Parties: SOUTH BOSTON ALLIED WAR VETERANS COUNCIL, and John J. Hurley, as Parade Adjutant of the South Boston Allied War Veterans Council, Plaintiffs, v. The CITY OF BOSTON and the Boston Police Department, Defendants.
• Court: U.S. District Court — District of Massachusetts

Page 388

297 F.Supp.2d 388

SOUTH BOSTON ALLIED WAR VETERANS COUNCIL, and John J. Hurley, as Parade Adjutant of the South Boston Allied War Veterans Council, Plaintiffs, v. The CITY OF BOSTON and the Boston Police Department, Defendants.

No. CIV.A. 03-10554-RBC¹.

United States District Court, D. Massachusetts.

December 29, 2003.

Chester Darling, Boston, MA, Robert J. Roughsedge, Lawson & Weitzen, LLP, Boston, MA, Michael Williams, Citizens for the Preservation of Constitutional Right, Boston, MA, for South Boston Allied War Veterans Council, John J. Hurley, Plaintiffs.

Mary Jo Harris, Boston Police Department, Boston, MA, for Boston, City of, Bobby Johnson, Defendants.

OPINION

COLLINGS, United States Magistrate Judge.

I. Introduction

This action stems from events that took place on March 16, 2003 at the South Boston St. Patrick's Day parade. Plaintiffs South Boston Allied War Veterans Council and John J. Hurley (hereinafter collectively "the plaintiffs" or "the Council") are responsible for the organization of that annual parade. According to the Council, the City of Boston (hereinafter "the City") and the Boston Police Department (hereinafter "the BPD" or collectively "the defendants") allowed a group known as the Veterans for Peace to march at the end of the Saint Patrick's Day parade without a permit and against the plaintiffs' wishes. By virtue of this litigation, the Council seeks a declaratory judgment to the effect that the defendants violated the plaintiffs' First Amendment rights, an Order from the Court permanently to enjoin the City from interfering with the plaintiffs' speech, an award of nominal damages and, pursuant to 42 U.S.C. § 1988, an award attorneys' fees and costs associated with this proceeding. The defendants deny having violated the Council's constitutional rights and further request that the Court enter an Order to the effect that the end of plaintiffs' parade shall be determined by the last authorized marcher, group or float in the procession, that the City shall place a police vehicle behind that last marcher, group or float and any unwelcome group will be allowed to march only after that last police cruiser.

II. Facts

In lieu of filing cross-motions for summary judgment, the parties agreed to stipulate to the facts so as to enable the Court to decide this case on the basis of a written record. See Brotherhood of Locomotive Engineers v. Springfield Terminal Ry. Co., 210 F.3d 18, 31 (1 Cir., 2000)("In a case submitted for judgment on a stipulated record, the district court resolves disputed issues of material fact.") citing Boston Five Cents Savings Bank v. Secretary of the Department of Housing and Urban Development, 768 F.2d 5, 11-12 (1 Cir., 1985). The facts as so stipulated, along with facts gleaned from the pleadings, are as follows.²

The Council, an unincorporated association of veterans groups, applied for and obtained a permit from the Boston Transportation Department to conduct the annual St. Patrick's Day parade (hereinafter "the Parade") in South Boston on March 16, 2003. The Parade is privately organized by the plaintiffs and the Council asserts the right to include or exclude any units or individuals from participating in the Parade. A group calling themselves the Veterans for Peace (hereinafter "the Protest Group") sought permission from the Council to march in the 2003 Parade but were denied per the Council's discretion to approve or disapprove parade participants.

The BPD deployed about three hundred fifty police officers to service the Parade at an overtime cost of more than fifty-four thousand dollars.³ The BPD knew before the Parade that the Council had excluded the Protest Group from the parade roster.⁴ Indeed, on the day of the Parade, Boston Police Superintendent Bobbie Johnson who was in charge of policing the event, informed his officers that the Protest Group was not authorized to march in the Parade, but that the group would be allowed to march after the Parade had passed.

On March 16, 2003, the Protest Group appeared at the starting point of the Parade to protest the American presence in Iraq and their exclusion from the Parade. At or about 12:55 P.M. that day a police official advised the Protest Group that they would be permitted to march on the Parade route after the last registered group had passed. The police officials intended to have the Protest Group march after the street sweepers⁵ but because of safety hazards, they were allowed to march in front of the street sweepers and a police contingent, but behind the body of the Parade.

Up to one million people gather along the parade route to view the Parade. Despite not having a permit, the Protest Group marched along the parade route carrying signs containing anti-war slogans after the body of the Parade had passed. The public response to the Protest Group was both positive and negative, although no major incidents were reported. The presence of the Protest Group and spectator reaction to them was reported in the two local Boston newspapers.

The BPD asserts that it has the right to allow a group to march on the parade route after the Parade has passed. It is the policy of the BPD not to exclude persons, based solely on the content of their speech or message, from assembling or marching after the Parade, provided no public safety risks are presented. The Council, on the other hand, takes the position that its right to conduct a private parade includes the right to prohibit any unwanted group from marching in the Parade and conveying disapproved messages to spectators along the parade route.

III. Discussion

A. The Supreme Court's Decision in the Hurley Case

The First Amendment guarantees that a government entity shall make no law abridging the freedom of speech. Over time, case law has developed underscoring the fundamental importance of protecting speech in the public forum. As stated by the Supreme Court, "[w]e have recognized that the First Amendment reflects a `profound national commitment' to the principle that `debate on public issues should be uninhibited, robust, and wide-open.'" Boos v. Barry, 485 U.S. 312, 318, 108 S.Ct. 1157, 99 L.Ed.2d 333 (1988) (citations omitted).

The plaintiffs assert that the defendants violated their First Amendment right to freedom of speech when the BPD allowed the Protest Group to march at the end of the Parade. In Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston, 515 U.S. 557, 115 S.Ct. 2338, 132 L.Ed.2d 487 (1995), the Supreme Court addressed the issue of "whether Massachusetts may require private citizens who organize a parade to include among the marchers a group imparting a message the organizers do not wish to convey." Hurley, 515 U.S. at 559, 115 S.Ct. 2338. There is no question but that this Supreme Court decision is controlling.

In Hurley, John J. Hurley and the South Boston Allied War Veterans, the identical plaintiffs as in the case at bar, brought an action in the Massachusetts state court arguing that their freedom of speech was violated when the City of Boston forced them to allow the Irish-American Gay, Lesbian and Bisexual Group of Boston (hereinafter "GLBG") to march in their annual St. Patrick's Day parade under the public accommodation laws of the Commonwealth. The Supreme Court overruled the Massachusetts Supreme Judicial Court, holding that "such a mandate violates the First Amendment." Hurley, 515 U.S. at 559, 115 S.Ct. 2338.

The Hurley Court began its analysis by determining that the St. Patrick's Day parade qualifies for protection under the First Amendment: "Parades are thus a form of expression, not just motion, and the inherent expressiveness of marching to make a point explains our cases involving protest marches." Hurley, 515 U.S. at 568, 115 S.Ct. 2338. The Court recited a litany of cases illustrating that parades are forms of expression that must be protected regardless of the message delivered. See, e.g., National Socialist Party of America v. Skokie, 432 U.S. 43, 97 S.Ct. 2205, 53 L.Ed.2d 96 (1977)(marching in uniforms displaying swastikas protected by the First Amendment); Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969)(wearing an armband to protest a war is a form of protected communication); Edwards v. South Carolina, 372 U.S. 229, 83 S.Ct. 680, 9 L.Ed.2d 697 (1963) (marching, carrying signs and singing the national anthem reflects an exercise of basic Constitutional rights). The Court concluded that "[n]ot many marches, then, are beyond the realm of expressive parades, and the South Boston celebration is not one of them." Hurley, 515 U.S. at 569, 115 S.Ct. 2338. That the organizers may have been "lenient" in choosing participants for the Parade does not mean that they lost their First Amendment rights; "a private speaker does not forfeit constitutional protection simply by combining multifarious voices, or by failing to edit their themes to isolate an exact message as the exclusive subject matter of the speech." Hurley, 515 U.S. at 569-570, 115 S.Ct. 2338.

The Supreme Court was of the view that GLBG's "participation as a unit in the parade was equally expressive" because GLBG sought "to communicate its ideas as part of the existing parade, rather than staging one of its own." Hurley, 515 U.S. at 570, 115 S.Ct. 2338. The state enforced participation "alter[ed] the expressive content of [plaintiffs'] parade" and in doing so "violate[d] the fundamental rule of protection under the First Amendment, that a speaker has the autonomy to choose the content of his own message." Hurley, 515 U.S. at 572-573, 115 S.Ct. 2338. As the Court explained:

Rather like a composer, the Council selects the expressive units of the parade from potential participants, and though the score may not produce a particularized message, each contingent's expression in the Council's eyes comports with what merits celebration on that day. Even if this view gives the...