AUTHORSHIP AND AUTONOMY AS RITES OF EXCLUSION - THE INTELLECTUAL PROPERTIZATION OF FREE SPEECH IN HURLEY V IRISH-AMERICAN GAY, LESBIAN AND BISEXUAL GROUP OF BOSTON

In the summer of 1995, the Supreme Court upheld the right of a South B oston veterans organization to exclude openly gay and lesbian Irish-Am ericans from marching in the city's annual St. Patrick's Day parade. I n this note, Madhavi Sunder offers a cultural reading of the events in South Boston and the Court's subsequent interference in the dispute. Analogizing the ensuing rights to absolute use, exclusivity, and trans fer the Court granted to the parade's organizers an intellectual prope rty right in the parade, Ms. Sunder observes how today's ''culture war s''-disputes between groups about identity, representation, and the ri ght to create social and cultural meaning-are increasingly governed by a property-like conception of the First Amendment. Rather than let pa rties hash out cultural issues of representation, a process essential for cultures to adapt to the modern world, the First Amendment seeks t o protect cultural ideas with an exaggerated view of ''speaker autonom y'' which, Ms. Sunder points our, largely resembles the romantic notio n of the ''author'' in intellectual property law. Under this property view, the First Amendment insulates ideas from dissent and change, gra nting absolute power to create and maintain meaning to some groups at the exclusion of others. The result is cultural stasis and maintenance of the status quo. Ms. Sunder argues that property approaches to ''fr ee speech'' must be met with skepticism. What is needed instead, she u rges, is a cultural approach to the First Amendment, the contours of w hich she examines in this note.