Freedom of speech and expression is considered to be as one of the most important rights in the western world. This is especially true in the United States. Freedom of speech is guaranteed in the First Amendment of the U.S. constitution. It is not very surprising that the Supreme Court has also given several landmark judgements in this matter. Here, I am discussing two of them. The subject in both is the concept of compelled speech. It means that the government can not force an individual or a group to support certain expression or opinion. First one of the cases I am discussing is Hurley v. Irish American Gay, Lesbian and Bisexual Group of Boston, Inc. This was a very interesting case of Freedom of speech in relation to presentation in a Saint Patrick’s Day parade. Second case is Moody v. NetChoice LLC. The issue in this case was the content moderation that many online service providers use and whether this was a violation under First Amendment. My purpose is to illustrate how the Supreme Court uses the arguments in the first one to support the ruling in the second one.
In Hurley, the question of free speech came in relation presentation in a Saint Patrick’s Day parade. This parade consisted of a various veteran groups authorized by the city of Boston. The application to the Supreme Court was sparked by the refusal of accepting GLIB (Irish American Gay, Lesbian and Bisexual Group of Boston) as a part of the parade. GLIB wished to participate in order to express its members’ pride in their heritage as openly gay, lesbian and bisexual individuals. The legal question was whether this parade was a protected form of expression that would be protected under the First Amendment of the constitution.
GLIB argued that the city council’s decision to deny their participation was a form of discrimination prohibited by the First Amendment. The Massachusetts court argued that the council did not have any procedures for admission, there was no other reason to exclude GLIB than discrimination. Court also stated that since there was a lack of genuine selectivity in choosing participants and sponsors, it demonstrated that the parade was in fact a public event. Council appealed the decision, and the case entered into the Supreme Court.
Supreme Court did not agree with the Massachusetts’s court decision. The Supreme Court saw that the parades are inherently expressive and because of these organizers can select participants. In its ruling, Massachusetts court violated the first amendment by requiring private parades to include messages or people the organizers did not agree with.
Supreme Court’s definition of the First Amendment is that it offers protection when there is an entity engaging in expressive activity (that includes compiling and curating others’ speech) and it is directed to accommodate messages they would prefer to exclude. When there is editorial selection and presentation of the content, it is considered as a speech activity. It does not matter whether it comes from a third party or not. Decision to include or exclude a third-party speech is expressive activity of its own and it results in a distinctive expressive product. When government interferes with editorial choices it alters content of the compilation thus overriding expressive choices of the private party. This is enough to violate the First Amendment.
Constitutional protection also covers situations where the excluded messages are few or even only one. The parade did not have to express a particularized message in order not to reject few messages they found harmful or offensive. In the judgement court takes a firm stand against compelled speech. The government has no right to decide when the speech is against its own vision of ideological balance or to alter the speaker’s own expression.
Alito gave a concurring opinion. His view on Hurley differs greatly from the opinion of the majority. In his view legal precedents of this matter are incomplete. It is inconclusive how social media platforms” moderate” user content and whether it is inherently expressive in a way that it is protected under the first Amendment. Alito is way more critical of the judgement given in Hurley. He notes that usually freedom of speech is interpreted in a way that forbids government in denying, restricting, or compelling peoples own oral or written expression. Hurley case, however, freedom of speech was expanded. It now included the right to:” present an edited compilation of speech generated by other persons” for expressing a particular message. Compilation here means organized package of expressions of others intended to be presented.
Since the First Amendment protects compilations that are” inherently expressive”, the parade did not convey any particular meaningful expression. Accommodation therefore does not amount to compelled speech. Alito states that a parade organizer who wants to exclude certain groups of people on the the basis of First Amendment must show at least some sort of collective point or theme. If the parade comprises just unrelated segments, it does not express anything at all. Finally, Alito underlines that the compliers own message is to be affected in order to receive protection under the First Amendment.
In my opinion Hurley is quite weak precedent to use in Moody since this case dealt with moderating already existing messages a.k.a censorship and not the prohibition to express one’s own opinion beforehand. Actually, Hurley is weak case in general. The Supreme Court really had to elongate the concept of parade in order make it fit to the narrative of compelled speech. It really almost feels forced. In my view, the parade organizers did not want to include GLIB for discriminatory reasons, perhaps they were afraid that it would somehow tarnish the parade in question.