Too Much Free Speech?

Chapter 3. Expressive Conduct Unleashed: Hurlye v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557 (1995)1

ChAPTER ThREE Expressive Conduct Unleashed Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557 (1995)1 With the Hurley case we pursue the questions of speech and its source, nature, and meaning under the First Amendment. What if speech might exist even in the absence of a creator and an expressive object? Can constitutionally recognized speech emerge “out of thin air?” Indeed, with aesthetic expression, might not much expression emerge from thin air? An example may help. Dada is a form of art that consists of the ridiculous, the purposefully incomprehensible, and the totally deconstructed. An early Dada stage performance involved “skits enacted by (African) masked figures dressed in colorful costumes” who accompanied themselves with drums, pot covers, and frying pans as they recited poems that sounded like this: gadji beri bumba glandridi lauli lonni cadori gadjama bim beri glassala glandridi glassala tuffin I zimbrabim blassa galassasa tuffin I zimbrabim “The noise from the stage was deafening. There was bedlam in the hallway. The performers behaved like new recruits simulating mental illness before a medical commission.”2 We might say, in this example of Dada, that the expression has speakers and creators and many individual and collective objects or performances, but the meaning or message, cognitive or aesthetic, is largely of the audience’s construction. Is this very uncommon way in which we might think of speech when we think of aesthetic or metaphorical expression necessary to a full appreciation all of the forms that freedom of speech might take? If so, we will have crossed a threshold, perhaps, in our conception of freedom. But the new threshold will prove treacherous. How can the concept of speech out of thin air be limited? Everyone sees meaning in objects, events, memories, acts. Must everything, at least for the meaning giver/receiver (often one and the same), become speech: the storm, the blade of grass, the warm bath? Might the feeling of comfort and security and peace evoked by the warm bath on a cold day be described as aesthetic and, thus, expressive? Are all acts of discrimination directed at others potentially “speech” acts that we who would see them as metaphors should be free to preserve from government prohibition or regulation? It is to these questions that the profoundly important, yet often frustrating , Hurley case will be considered in the following story. The case presents a great story, but we must also keep our eye trained on the issues: What is the nature of the expression in Hurley? How does it occur? Is it distinct in any useful ways from cognitive political or cultural speech, not in subject necessarily , but in process, form, skill? Are the costs—even to the First Amendment freedoms themselves—simply too great to cross the cognitive/aesthetic line without an author because there can be no principled and practical limit that can be enforced to stop us from tumbling down the slippery slope? The Hurley case involves the exclusion of an objectionable group with an objectionable view—pro-gay—from the longstanding annual St Patrick’s Day Parade in Boston, and the Massachusetts law that deemed the exclusion illegal discrimination. Is a parade speech? Is a parade an event in the nature of metaphor and viewer construction rather than linear transmission of a message from a known, intending speaker to an audience that comprehends what the speaker means? Is the selecting of parade participants in the construction of the parade distinguishably expressive from the rejection of one or more participants? Is an orchestra director’s selection of instrumentalists for a performance an act of free speech? What if the director deselects a violinist, not on grounds that he is a poor violinist, but on grounds that he is black and the aesthetics of racial diversity is not a message the director wishes to convey? ■ ■ ■ The South Boston Allied War Veterans Council is a private association of representatives of veterans groups that for many, many years have organized and conducted the annual St. Patrick’s Day–Evacuation Day Parade in Boston.3 In 11 4 . iii. forms of speech the early 1990s, the parade was firmly in the hands of the Veterans Council and its Chief Marshal, John Hurley. For as long as he could remember, he has been known widely and affectionately in South Boston as “Wacko” Hurley, or better yet, as Wacko. “Some people find it hard...