Are Parades Protected by the First Amendment?

Parades are a form of group expression where individuals gather for a collective and generally celebratory purpose in front of spectators or bystanders. They generally are more festive events that involve floats, performers and musical performances. Parades differ from marches and demonstrations, which often involve a particular protest or convey a specific ideological or political viewpoint.

Many parades celebrate holidays, such as Christmas or Thanksgiving Day parades. Other parades celebrate a culture or group of people. For example, every year, many cities have a Pride parade that celebrates LGBTQ+ culture, awareness and lifestyle.

But make no mistake about it: Parades are a form of expression protected by the First Amendment freedoms of assembly and speech, just as much as protest marches or demonstrations. And as with protests, there are some allowable government limits and restrictions on parades.

Parade permits and the First Amendment

Because parades involve large groups of people using or occupying public spaces and places, government officials may require parade organizers to obtain a permit to conduct the parade.

Government officials must be neutral in their review of parade permits. For example, officials would violate the First Amendment and its principle to be neutral with regard to viewpoint if the government approved group A to have a permit because the government approved of group A’s message but denied a parade permit to group B, because the government disliked group B’s message. In other words, the government has an obligation to be viewpoint neutral and not use parade-permitting decisions to suppress disfavored viewpoints.

Government officials can also impose reasonable time, place and manner restrictions on parades. This means, for example, that government officials could require that the parade take place during certain hours of the day to avoid traffic congestion or that it avoids areas near hospitals, where it could interfere with important business. But again, government decision-making here must not be based on the underlying content or viewpoint of the parading group’s message.

RELATED: What Are Time, Place and Manner Restrictions?

Parade permitting processes also can violate the First Amendment if they impose “unduly broad discretion” — or give too much authority — to city or town officials to issue or deny parade permits. This is sometimes called a “prior restraint” on expression, meaning the government action prevents the speech or expression from ever entering the public conversation. The U.S. Supreme Court explained in 2002: “Where the licensing official enjoys unduly broad discretion in determining whether to grant or deny a permit, there is a risk that he will favor or disfavor speech based on its content.”

Justice Potter Stewart made this point poignantly in Shuttlesworth v. City of Birmingham (1969), a case involving Alabama civil rights leader Fred Shuttlesworth and his challenge to how city officials in Birmingham sought to silence his and others’ civil rights protests:

Even when the use of its public streets and sidewalks is involved, therefore, a municipality may not empower its licensing officials to roam essentially at will, dispensing or withholding permission to speak, assemble, picket, or parade according to their own opinions regarding the potential effect of the activity in question on the ‘welfare,’ ‘decency,’ or ‘morals' of the community.

That case concerned protests, but the court extended its reasoning to other forms of assembly, including parades. The idea here is that government officials must be guided by specific neutral standards. And the permitting process must provide the organizers an opportunity to contest a negative decision or parade permit denial.

Furthermore, city or town officials generally cannot engage in flat bans on parades in areas that are generally open to such activities. Public streets are traditional public forums that are open for expressive use by the public. Even flat bans in other areas may be constitutionally problematic. For example, a federal district court in Georgia ruled in 1994 that “parades may not be completely banned in residential neighborhoods.”

Parade organizers have First Amendment rights in selecting parade participants

The Supreme Court addressed another interesting aspect of parades and the First Amendment in Hurley v. Irish American Gay, Lesbian and Bisexual Group of Boston Inc. (1995). The case examined whether parade organizers had a First Amendment right to decide who to include and exclude from their parade.

In this case, the South Boston Allied War Veterans Council served as the organizer of a yearly St. Patrick’s Day parade in South Boston. The council excluded the Irish Gay, Lesbian and Bisexual Group of Boston from participating in the parade. The excluded group sued, contending that Boston officials and the council violated a public accommodations law by excluding it from a public event. Meanwhile, the veterans council countered that the inclusion of GLIB would conflict with the traditional values and messages of the parade organizers, effectively violating their free speech rights. The state court rejected the council’s First Amendment argument and said that the “recreational” event was indeed subject to the public accommodations law.

However, the U.S. Supreme Court reversed that decision and issued, in a unanimous opinion, a ruling in favor of the council. Writing for the court, Justice David Souter said that the parade was a medium of expression protected by the First Amendment. He then noted that the council had a First Amendment right to expressive association to decide which groups to allow in the parade as individual units.

“Our holding today rests not on any particular view about the Council’s message but on the Nation’s commitment to protect freedom of speech,” Justice Souter explained. “Disapproval of a private speaker’s statement does not legitimize use of the Commonwealth’s power to compel the speaker to alter the message by including one more acceptable to others.”

The net result was that the council had First Amendment rights in speech and expressive association to decide who could march in its parade.

Although restrictions apply, parades — like other forms of assembly, such as protests and demonstrations — are protected by the First Amendment. They appear across the country, celebrating groups, holidays and other cultural events.

David L. Hudson Jr. is a First Amendment fellow with Freedom Forum and an associate professor of law at Belmont University.