Exclusion of Students for Justice in Palestine from U Missouri Homecoming Parade May Have Violated First Amendment

From Mizzou Students for Justice in Palestine v. Choi, decided earlier this month by Judge Stephen Bough (W.D. Mo.):

Plaintiff Mizzou Students for Justice in Palestine ("MSJP") is a registered student organization at the University of Missouri ("the University" or "MU"). MSJP is dedicated to advocating for Palestinian rights by raising "awareness on campus of the historical and ongoing injustices committed against Palestinians." MSJP has hosted dozens of events, including "marches, lectures, and panel discussions."

The University hosts an annual Homecoming Parade. In the fall of 2024, MSJP applied to be part of the Homecoming Parade for the first time. MSJP planned to perform a traditional Palestinian dance and pass out Palestinian sweets. It also planned on displaying signs that read "Ceasefire Now" and "Stop the Genocide." Dr. Choi is the Chancellor of MU. Although MSJP initially believed that its application to participate in the 2024 Homecoming Parade had been approved, Dr. Choi ultimately denied the application, citing concerns related to safety….

The Free Speech Clause restricts the government's regulation of private speech, but does not regulate government speech…. In determining whether "the government intends to speak for itself or to regulate private expression[,]" [this Court] … is driven by a case's context rather than the rote application of rigid factors [and looks to] … the history of expression at issue; the public's likely perception as to who (the government or a private person) is speaking; and the extent to which the government has actively shaped or controlled the expression." Shurtleff v. City of Boston (2022)….

[a.] History of Expression

Under the history of the expression at issue factor, the Court looks to both the specific history of the MU Homecoming Parade and homecoming parades in general. The Complaint alleges that "[t]he University of Missouri has hosted an annual homecoming celebration for over 100 years. The University's Homecoming Parade is one of the oldest homecoming traditions in the country, with some even touting it as the very first homecoming tradition by an American university" and that "[t]he Homecoming Parade has long been a place for the expression of political and social messages, including ones widely considered controversial or offensive."

The Complaint further alleges that "[t]he Homecoming Parade has welcomed political campaigns and activist groups of all kinds, including many that people would find controversial or offensive." Finally, the Complaint alleges that "[e]ntities across the spectrum—from local businesses to student organizations—participated in the [2024] Homecoming Parade."

These allegations are sufficient to tilt the history of expression factor in MSJP's favor. The allegations of diverse participation stand in contrast with government-sponsored military parades, for example, which have a long tradition of communicating a more singular message to "celebrate [a nation's] militaries." Here, there does not appear to be a singular message as the Homecoming Parade has "long been a place for the expression of political and social messages[.]" Ultimately, the allegations do not show that the Homecoming Parade has "long conveyed important messages about the government." …

[Some more details from an earlier decision in the case: —ed.]

{[T]he MU Homecoming Parade … has a history of welcoming a diverse group of parade entries …, the Legion of Black Collegians led a march against racial injustices during the Homecoming Parade. In 2023, a Columbia resident described the Homecoming Parade participants to include a former city councilwoman in a suffragette costume, an LGBTQ group with dance music and a drag queen, and then lieutenant-governor, Republican Mike Kehoe, with "a crew politicking for his run for governor." In 2024, parade-walkers held signs advocating for a "yes" vote on Amendment 3 (a ballot measure to protect the right to abortion) and for national political candidates.

At the hearing, Dr. Choi and McCubbin stated that MU's Homecoming Parade has historically had campaigners for public office, student political organizations with opposing viewpoints, for-profit sponsors, non-profit organizations, and student affinity groups. Further, when the Court asked McCubbin whether the University had endorsed past political floats, he answered "no."}

[ii.] Public's Likely Perception

Under the public-perception factor, the Court considers whether, taking the alleged facts as true, the public would perceive the Homecoming Parade as an expression of governmental speech. As provided above, the Complaint provides that the Homecoming Parade has traditionally accepted a wide variety of participants including those with conflicting political views. For example, in the 2024 Homecoming Parade, examples of participants included "pro-choice and pro-life groups[,]" "a fraternity riding a truck while waiving 'TRUMP' and 'MAKE AMERICA GREAT AGAIN' flags[,]" "the Mid-Missouri Pride Fest[,]" and "the league of Women Voters[.]"

[Some more details from an earlier decision in the case, which discussed the slightly different 2025 policy, rather than the 2024 policy that is being challenged in the broader excerpt I quote:—ed.]

{While the Parade Policy prohibits active campaigning this year, it still features a diverse mix of "invited participants" such as the Oscar Mayer Wienermobile and elected officials, neither of which are explicitly listed on the Parade Policy. The parade will also feature "paid sponsors" such as "HotBox Cookies," and community organizations such as "Columbia Christian Academy" and "Columbia Youth Lacrosse." The public does not tend to view MU as endorsing a sitting congressman, the Oscar Mayer Weinermobile, or a private Christian school just because they appear in its Homecoming Parade.}

Based on the allegations in the Complaint, the Court finds that the public would not "tend to view" the Homecoming Parade as the government speaking because the public seems unlikely to view the parade as "conveying some message" on the government's behalf. These allegations are sufficient to show that MU is not expressing a coherent governmental message. Indeed, if MU was expressing a message, given the variety of participants, it would be one that is "babbling prodigiously and incoherently." Matal v. Tam (2017) (concluding that if trademarks registered by the Patent and Trademark Office were government speech, the government would be "unashamedly endorsing a vast array of commercial products and services").

Finally, contrary to Dr. Choi's argument that "[a] reasonable observer at the parade would naturally conclude that the University is the speaker, since the University obtains the permit, funds the event, sets the theme, and orchestrates the proceedings[,]" those administrative acts, standing alone, do not transform private speech into government speech….

[iii.] The Extent to which the University has Shaped or Controlled the Expression

In assessing the extent to which the government has shaped or controlled the expression of the Homecoming Parade, the Court considers the role Dr. Choi plays in the 2024 Homecoming Parade. The Complaint alleges that "[a] University of Missouri official told MSJP leadership that its application would be subjected to a unique review process. Unlike every other student organization, Chancellor Choi had the final say on whether MSJP would be allowed to participate in the [2024] Homecoming Parade." These allegations are insufficient to tilt this factor in favor of MU as "the mere existence of a review process with approval authority is insufficient by itself to transform private speech into government speech."

Moreover, the Complaint's assertion that Dr. Choi had final authority over MSJP's participation—"unlike every other student organization"—suggests that he did not exercise such control over any other organization's message. Consequently, Dr. Choi has not "actively exercised" any authority to shape the message of the Homecoming Parade. Walker v. Sons of Confederate Veterans (2015) (noting that the Texas Department of Motor Vehicles Board had "rejected at least a dozen proposed [license plate] designs.")….

The court therefore concluded that the Parade was either a limited or unlimited designated public forum, that viewpoint discrimination was forbidden in either forum, and that the plaintiffs had adequately alleged such viewpoint discrimination:

The 2024 Homecoming Parade featured a wide array of participants expressing diverse and sometimes conflicting viewpoints, yet MSJP was the only group excluded from participation. Accordingly, the Court agrees with MSJP that the Complaint plausibly alleges that "MSJP's exclusion was not content-neutral," as "the only viewpoint barred from expression was one in support of Palestinians." …

The Complaint alleges that Dr. Choi "required of MSJP what [he] did not require of other student organizations—to explain in painstaking detail all of their plans for the [2024] Homecoming Parade." Dr. Choi also allegedly requested that MSJP "refrain from displaying [a] 'Stop the Genocide' [sign.]" Finally, after denying MSJP's application, another student group allegedly agreed to carry the Palestinian flag, but Dr. Choi "forbade them from holding the Palestinian flag unless the group also held the Israeli flag."

These allegations demonstrate that Dr. Choi subjected MSJP to a "unique scrutiny" and are sufficient to show that the exclusion was motivated by MSJP's viewpoint on Palestine and Israel….

And the court concluded that plaintiff's allegations, if shown, would show a violation of a clearly established constitutional right, so defendants couldn't claim qualified immunity.

An earlier decision granting a preliminary injunction concluded that plaintiffs had not only adequately alleged a First Amendment violation as to the 2024 parade denial, but that they were also likely to succeed on the merits as to the planned exclusion of the group from the 2025 parade.

Ahmad Kaki, Gadeir Abbas, and Lena F. Masri (CAIR Legal Defense Fund), C. Kevin Baldwin, Eric E. Vernon, and Sylvia Alejandra Hernandez (Baldwin & Vernon), and Benjamin J. Wilson and Lisa S. Hoppenjans (Washington University School of Law, First Amendment Clinic) represent plaintiff.

 

Comments

[Frank Drackman]

I hate Missouri Nazis

[Josh R]

The Orange Whips aren't any good in Missouri either.

[ReaderY]

The opinion never cites, let alone discusses, the obvious seminal case on parades and the First Amendment, Hurley v. Irish-American Gay, Lesbian, and Bisexual Group. The appellees had argued exactly the position that the District Court found controlled this case: the parade at issue involved such a motley collection of different parties and messages that it hardly communicated any coherent message of its own, it was instead merely a public accommodation for other parties’ messages, so that applying state discrimination law wouldn’t stifle any message and hence would not implicate the First Amendment. But the Supreme Court found otherwise. Despite permitting a rather motley collection of floats and messages, a parade (at least the one at issue in Hurley) is nonetheless speech and the First Amendment permits the parade organizers to exclude a message they don't like.

Why doesn’t Hurley control or at least affect this case? The District Court analogized from other government-speech cases to hold that the University of Missouri’s homecoming parade has too motley a collection of floats and messages to represent speech (in this case government speech) in its own right. But this would seem to be highly related to, if not exactly, the issue the Supreme Court rejected in Hurley.

It seems to me the District Court was at the very least obligated to carefully compare the two cases and explain what about this case makes the outcome different from Hurley. Perhaps the two parades are sufficiently different. Perhaps the analysis of whether a message exists is sufficiently different for government speech vs. private speech that Hurley doesn’t apply.

But it seems to me the propositions decided in the two cases are sufficiently similar that either Hurley controls (here giving the University of Missouri speaker status and making the parade government speech), or the District Court was obligated to explain why it doesn’t.

[Bored Lawyer]

The parade in Hurley was run by a private party, while this one was run by a public university. Not sure that that suffices to distinguish, but I think it does. Government can't discriminate against a viewpoint, unless its government speech. Where the "speech" is so varied and motley, it's hard to argue there is any government speech.
Private parties, OTOH, do not have to have a coherent message. They can exclude one group but not another. The organizers of the parade in Hurley did not want to be forced to affirm a position they disagreed with. That seems to be well within First Amendment doctrine.

[ReaderY]

But Hurley decided exactly this issue. Despite being varied and motley, and despite the organizer not having rejected floats in the past - both arguments were raised and rejected in Hurley - a parade is nonetheless speech, and its organizer is nonetheless the speaker, for First Amendment analysis purposes.

Why should that conclusion about the nature of a parade depend in any way on whether the organizer is government or private? Hurley suggests a parade has a sui generis status and is its own thing, making cases involving other activities inapplicable.

[Bored Lawyer]

Here are the key parts of Hurley:

To be sure, we agree with the state courts that in spite of excluding some applicants, the Council is rather lenient in admitting participants. But 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.
Nor, under our precedent, does First Amendment protection require a speaker to generate, as an original matter, each item featured in the communication. Cable operators, for example, are engaged in protected speech activities even when they only select programming originally produced by others. Turner Broadcasting System, Inc. v. FCC, 512 U. S. 622, 636 (1994) ("Cable programmers and cable operators engage in and transmit speech, and they are entitled to the protection of the speech and press provisions of the First Amendment"). For that matter, the presentation of an edited compilation of speech generated by other persons is a staple of most newspapers' opinion pages, which, of course, fall squarely within the core of First Amendment security, Miami Herald Publishing Co. v. Tornillo, 418 U. S. 241, 258 (1974), as does even the simple selection of a paid noncommercial advertisement for inclusion in a daily paper, see New York Times, 376 U. S., at 265266. The selection of contingents to make a parade is entitled to similar protection.
. . .
Although the state courts spoke of the parade as a place of public accommodation, see, e. g., 418 Mass., at 247-248, 636 N. E. 2d, at 1297-1298, once the expressive character of both the parade and the marching GLIB contingent is understood, it becomes apparent that the state courts' application of the statute had the effect of declaring the sponsors' speech itself to be the public accommodation. Under this approach any contingent of protected individuals with a message would have the right to participate in petitioners' speech, so that the communication produced by the private organizers would be shaped by all those protected by the law who wished to join in with some expressive demonstration of their own. But this use of the State's power violates the fundamental rule of protection under the First Amendment, that a speaker has the autonomy to choose the content of his own message.
"Since all speech inherently involves choices of what to say and what to leave unsaid," Pacific Gas & Electric Co. v. Public Utilities Comm'n of Cal., 475 U. S. 1, 11 (1986) (plurality opinion) (emphasis in original), one important manifestation of the principle of free speech is that one who chooses to speak may also decide "what not to say," id., at 16. Although the State may at times "prescribe what shall be orthodox in commercial advertising" by requiring the dissemination of "purely factual and uncontroversial information," Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U. S. 626, 651 (1985); see Pittsburgh Press Co. v. Pittsburgh Comm'n on Human Relations, 413 U. S. 376, 386-387 (1973), outside that context it may not compel affirmance of a belief with which the speaker disagrees, see Barnette, 319 U. S., at 642. Indeed this general rule, that the speaker has the right to tailor the speech, applies not only to expressions of value, opinion, or endorsement, but equally to statements of fact the speaker would rather avoid, McIntyre v. Ohio Elections Comm'n, 514 U. S. 334, 341-342 (1995); Riley v. National Federation of Blind of N. c., Inc., 487 U. S. 781, 797-798 (1988), subject, perhaps, to the permissive law of defamation, New York Times Co. v. Sullivan, 376 U. S. 254 (1964); Gertz v. Robert Welch, Inc., 418 U. S. 323, 347-349 (1974); Hustler Magazine, Inc. v. Falwell, 485 U. S. 46 (1988). Nor is the rule's benefit restricted to the press, being enjoyed by business corporations generally and by ordinary people engaged in unsophisticated expression as well as by professional publishers. I ts point is simply the point of all speech protection, which is to shield just those choices of content that in someone's eyes are misguided, or even hurtful. See Brandenburg v. Ohio, 395 U. S. 444 (1969); Terminiello v. Chicago, 337 U. S. 1 (1949).

The repeated focus on rights of private parties suggests that what is speech for a private party and what is government speech are not congruent. The kind of "lenient" position the organizers of the Hurley parade does not, IMO, apply to a government organized parade.

Which has a legal basis. The First Amendment restricts the government and protects private parties. In Hurley, Massachusetts was imposing itself onto private speech. In the Missouri case, private parties want to join a government parade. It is the organizer, here the U of Missouri, that is restricted by the First Amendment.

[Bored Lawyer]

Here is a hypo that might illuminate things. (We hope.)

The City of Succotash decides to promote a campaign to encourage voting. "VOTE: IT'S THE BEDROCK OF DEMOCRACY." It prints posters with that message. As part of its campaign, it allows local civic organizations to add their logos to posters that they post in their places or around town. The Elks, the Knights of Columbus, local houses or worship, etc., each can order posters with their logos or names.

The local LBGTQ group wants to do the same -- put its logo on town posters and then put them up. Town says no, too controversial.

The posters are clearly government speech. But I think the exclusion is still a First Amendment violation. The town's message is everyone should vote, and other than that, every civic group can participate. To then exclude on group because of its viewpoint would be a First Amendment violation, IMO.

(The local "Don't Vote, It's A Waste Of Time" group might be excludable.)

[Krayt]

Where the "speech" is so varied and motley, it's hard to argue there is any government speech.

This was also the issue in the license plate logo case, where the court approved the state suddenly to slam its foot down on the "it's government speech" peg. They state actually treated it as an advertising space to all comers, like the side of a bus, which has been ruled in the other direction, in favor of speech.

The dissent mocked the government speech aspect, how Texas, I think it was, was in full throated support of opposing state U football teams, opposing to Texas native teams at that.

[apedad]

The Mizzou Students for Justice in Palestine were again denied participation in the 2025 parade.

https://abc17news.b-cdn.net/abc17news.com/2025/09/Homecoming-parade-2025-participants-as-of-9-16-2025.pdf

[Malika la Maize]

If they win what do they get? Damages? And how would that be calculated?

[Frank Drackman]

I'd like to see them get lots of damages, Brain Damage, Kidney Damage.....

[Brett Bellmore]

Well, if you have a long and storied history of including terrorist affiliated organizations, you're kind of stuck. Who can forget the Weatherman float back in the 70's? It was a real blast...

I suppose for legal purposes we're pretending that Students for Justice in Palestine isn't affiliated with Hamas?

[apedad]

You can't prove a negative and the burden is on you to prove they are.

[Sarcastr0]

Your burden is proving Mizzou Students for Justice in Palestine is affiliated with Hamas.

[Brett Bellmore]

The national Students for Justice in Palestine certainly is affiliated with Hamas.

The local chapters have some degree of deniability in that regard, but when you're chanting "From the River to the Sea", that's not a lot of deniability.