This is an excerpt from Arguable, a Globe Opinion newsletter from columnist Jeff Jacoby. Sign up to get Arguable in your inbox each week.
He was a Massachusetts liberal of the old school, a patriot who joined the Army after graduating from Melrose High School in 1947 and a believer in individual freedom who protested against racial segregation in the 1950s. He put himself through law school, then gradually built up a legal practice. In those early decades, when he was representing clients in personal injury or family law disputes, it surely never occurred to him that he would play a key role in the history of First Amendment jurisprudence.
The case that made Chester Darling’s reputation was a 1995 Supreme Court landmark, Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston. He represented the South Boston Allied War Veterans Council, the longtime organizers of the city’s St. Patrick’s Day parade. The council had turned down an Irish gay pride organization, known by its acronym GLIB, that wanted to carry a banner celebrating their Irish heritage as gay, lesbian, and bisexual individuals. GLIB sued, arguing that the parade’s organizers had no right to exclude them.
Darling argued that the parade’s organizers had every right to exclude GLIB — or anyone else whose message they didn’t favor. For a long while, he appeared to be the only one saying so. Massachusetts courts up to and including the Supreme Judicial Court, ruled in GLIB’s favor, repeatedly holding that under the state antidiscrimination law, the parade could not exclude anyone on account of sexual orientation. Darling maintained that his clients weren’t excluding anyone on the basis of a personal characteristic — it was only GLIB’s message they wanted to block.
So strongly did Darling believe in the correctness of his client’s position that he tapped his own retirement savings to help defray the cost of an appeal to the US Supreme Court, which agreed to consider an appeal from the SJC ruling. When the oral argument took place on April 25, 1995, I was in the Supreme Court to see it.
By then I had gotten to know Darling a little. He was clearly nervous and his presentation wasn’t especially eloquent or polished. But he doggedly pressed a single point: The organizers of a private parade have carte blanche under the First Amendment to include or exclude any message they wish.
He came in for some tough questioning.
”Mr. Darling, I understood your brief to say this is your parade and you can do with it what you will,” Justice Ruth Bader Ginsburg challenged him. “That’s the essence of your argument? It’s your parade to make it do whatever you want it to do?”
He replied unhesitatingly.
”That’s correct, Justice Ginsburg,” he said. “My clients define the scope and content of the parade. They vote to include or exclude people and groups with messages that they approve of in their parade.”
Suppose, asked Justice Stephen Breyer, “their actual reason was that the sign calls attention to a fact that makes them feel uncomfortable” — in other words, they simply didn’t want to see any reference to homosexuality. “Where does that stand under First Amendment law?”
Darling stuck to the principle he wanted the court to endorse. “My clients can exclude it. They can exclude any message in any parade that they deem inappropriate.”
Two months later, the court unanimously agreed with him. All nine justices concluded that Massachusetts had been wrong. Fundamental to “the principle of free speech is that one who chooses to speak may also decide what not to say,” wrote Justice David Souter, and Massachusetts “is not free to interfere with speech for no better reason than promoting an approved message or discouraging a disfavored one.” (It was not the last time that the Supreme Court would rebuke Boston and Massachusetts, 9-0, for abusing the law to suppress unpopular expression.)
The parade controversy wasn’t the only unpopular cause into which Darling threw himself. To mention one other example: In 2010, the Boston City Council voted to expel one of its members, Chuck Turner, after he was sent to prison on a federal bribery conviction. Turner was as liberal as the Saint Patrick’s Day parade organizers were conservative. But that made no difference to Darling, who represented Turner and argued that the City Council has no power to expel a member. Once again Darling was arguing against popular opinion and the political establishment. Once again he prevailed.
Throughout his legal career, Darling told the Globe’s Sacha Pfeiffer when encroaching blindness forced him to retire, he had been animated by a deep aversion to government intrusion into people’s lives and by a concern for “people who get squashed by the system.” A client once likened him to St. Jude, the patron saint of hopeless causes. Some of the battles he waged did indeed prove hopeless. But in my encounters with him, Chet Darling, who passed away this month at 94, was invariably upbeat, bighearted, and optimistic. He was not only a happy warrior but a principled one. Cover lightly, gentle earth.
Jeff Jacoby can be reached at jeff.jacoby@globe.com. Follow him on X @jeff_jacoby.