United States District Court, D. Massachusetts
THE COURT: Let me explain my reasoning, and the reasoning has very little to do with the testimony I just heard. If this were purely a public safety issue -- and I understand that there is a strong component of public safety at stake -- I am thoroughly persuaded by Superintendent O'Rourke and Commissioner Evans that they know what they're talking about. They have 38 years of experience, which obviously I do not have, nor any of the rest of us, I suspect, sitting in the room. But I do not think that public safety is the issue at stake at the moment.
What I do not want us to lose sight of is the fact that this case involves a matter of constitutional protection. Parades, and in particular this parade, are protected by the First Amendment, as Justice Souter told us for a unanimous Court, and this is case, Mr. Darling, that you know well, in Hurley v. Irish American Gay, Lesbian, and Bisexual Group of Boston, 515 U.S. 557, 568 (1995).
Justice Souter pointed out that a parade is not merely motion but, rather, a public drama of social relations whose inherent expressiveness depends on marching in the public eye.
It is clear from Supreme Court cases that the State has a freer hand in restricting expressive conduct than it does in regulating the content of written and spoken words, Texas v. Johnson, 491 U.S. 397, 406 (1989). But how free a hand the state has depends to a great degree on the extent to which public property under government control has been traditionally devoted to expressive activity, Perry Educ. Ass'n v. Perry Local Educator's Ass'n, 460 U.S. 37, 45 (1983) Where public property is designated for use as a public forum, attempts by the State to regulate expressive conduct in that forum are subject to the strictest scrutiny under the First Amendment. Id.
It is also clear from Supreme Court decisions that municipal streets and sidewalks are traditional public fora, Id., citing Hague v. CIO, 307 U.S. 496, 515 (1939). It is true that the State is permitted to impose restrictions on expressive conduct that are designed to promote the public convenience, so long as these restrictions are not susceptible to abuses of discriminatory application, Cox v. Louisiana, 379 U.S. 536, 554 (1965).
I think the case most on point for us at the moment is Cox v. New Hampshire, 312 U.S. 569, 576 (1941). I will read one extract, and I apologize for its length, but I think it is very important what the Court is saying.
"It is, of course undisputed that appropriate, limited discretion, under properly drawn statutes or ordinances, concerning the time, place, duration or manner of the use of the streets for public assemblies may be vested in administrative officials, provided that such limited discretion is exercised with uniformity of method of treatment upon the facts of each application, free from improper or inappropriate considerations and from unfair discrimination, [and with] a systematic, consistent, and just order of treatment, with reference to the convenience of the public use of the highways."
I do not know the history of the parade as well as some of you do, but we do know from Hurley that Evacuation Day has been designated as a public holiday in Massachusetts since 1938. Justice Souter identifies the tradition of a celebratory parade as having begun as early as 1901. I do know from his opinion that in 1947 Mayor Curley appointed the Council as the chief organizer of the parade and, as I understand it, the Council has sponsored, applied for, and been issued a permit for the parade by the City since that time with the one exception that has been alluded to.
The route of the parade, which I understand to be roughly 3.2 miles, has remained essentially unchanged for 20 years. The one significant deviation was last year when all of us remember the largest snow accumulation that any of us have experienced and, according to meteorologists, perhaps the largest in the recorded weather history of the city of Boston.
What troubles me here, and this will lead me to the balancing of the factors I need consider with respect to a temporary restraining order is the sequence of events that took place leading to the hearing today. As I understand from the documentary record, the Council applied for the permit for the parade in April of 2015, that is, some seven or eight months ago. The City did not act formally on the application until February 26 of this year when the Council was informed that the parade route had been drastically modified. The two reasons given for curtailing the parade were: To mitigate public safety and crowd congestion.
There had been some preceding give and take with the Council, but, again as I understand it, there was a request from the Transportation Department, which did not issue until February of this year, for a letter in which the Council was to explain the organization of the parade. That letter was duly submitted.
The parade organizers, I believe, were then told there would be potentially a shortening of the route of the parade. The organizers responded on February 24, 2016, with a letter explaining the reasons why they disagreed with any such course of action, were it to be taken. And, as I said earlier, on February 26 the permit issued curtailing the route of the parade without any further consultation with the Council.
MR. GERAGHTY: Your Honor, I'm hesitant to interrupt while you're speaking, but I did want to make a point about that time ...