Appendix — Redgrave v. Boston Symphony Orchestra, Inc.

88-9 12% Supreme Court, U.s.

oe a Bs

No. 1988

JOSEPH F. SPANIOL, JR.

CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1988

>

VANESSA REDGRAVE

Petitioner,

—Y,—

BOSTON SYMPHONY ORCHESTRA, INC.,

Respondent.

APPENDIX TO PETITION FOR A WRIT OF

CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE FIRST CIRCUIT

Of Counsel:

KORNSTEIN VEISZ & WEXLER

THOMAS F. FLEMING

757 Third Avenue

New York, New York 10017

(212) 418-8600

November 29, 1988

DANIEL J. KORNSTEIN

and MARVIN WEXLER

757 Third Avenue

New York, New York 10017

(212) 418-8600

Counsel of Record

TABLE OF CONTENTS FOR APPENDIX

PAGE

Opinion of this Court of Appeals, en banc ........... la

Judgment of the Court of Appeals, en banc .......... 68a

Order of the Court of Appeals Denying Rehearing..... 70a

Opinion of the Court of Appeals (panel) ............. 72a

Opinion of the Supreme Judicial Court of the State of

PIE vb bn c60s5s0pb0 heen ecewoeseesacsoce 109a

Se Sr Ee EE UE ncn wenccddecawnddcacen — :129a

Constitutional and Statutory Provisions Involved...... 127a

la

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

>

No. 85-1305

VANESSA REDGRAVE and

VANESSA REDGRAVE ENTERPRISES, LTD.,

Plaintiffs, Appellants,

—

BOSTON SYMPHONY ORCHESTRA, INC.,

Defendant, Appellee.

aan

No. 85-1341

VANESSA REDGRAVE and

VANESSA REDGRAVE ENTERPRISES, LTD.,

Plaintiffs, Appellees,

—

BOSTON SYMPHONY ORCHESTRA, INC.,

Defendant, Appellant.

—-

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

{[Hon. Robert E. Keeton, U.S. District Judge}

a

Before

COFFIN, BOWNES, BREYER, TORRUELLA and SELYA,

Circuit Judges.

>

er S

2a

Daniel J. Kornstein with whom Marvin Wexler and Korn-

stein Veisz & Wexler were on brief for Vanessa Redgrave and

Vanessa Redgrave Enterprises, Ltd.

Barbara Arnwine, Alan Jay Rom, Lawyers’ Committee for

Civil Rights Under Law of the Boston Bar Association, F.

Anthony Mooney, Maria O’Brien Hylton, Hale & Dorr, and

Marjorie Heins, Massachusetts Civil Liberties Union Founda-

tion, on brief for Lawyers’ Committee for Civil Rights Under

Law of the Boston Bar Association and the Civil Liberties

Union of Massachusetts, Amici Curiae.

Robert E. Sullivan with whom John T. Harding, Jr., Cassan-

dra Warshowsky, Palmer & Dodge, Keith C. Long and Nutter,

McClennen & Fish were on brief for Boston Symphony Orches-

tra, Inc.

Marvin N. Geller, Thomas M. Sobol and Brown, Rudnick,

Freed & Gesmer on brief for American Jewish Congress, Ami-

cus Curiae.

Todd L.C. Klipp, Stephen A. Williams and Michael B.

Rosen, Office of the General Counsel, on brief for Trustees of

Boston University, Amicus Curiae.

Philip Burling, Stephen B. Deutsch and Foley, Hoag & Eliot

on brief for Boston College and Tufts University, Amici

Curiae.

>

OPINION EN BANC

AUGUST 31, 1988

COFFIN, Circuit Judge. This complex litigation has involved

this court at three stages. On first hearing the appeal from the

district court we certified two questions to the Supreme Judicial

Court of Massachusetts. After considering its responses,

together with its suggestions on an issue not expressly raised by

either question, a panel of this court agreed on the disposition

of issues relating to plaintiffs’ contract claim but divided as to

the disposition of a claim under the Massachusetts Civil Rights

Act (MCRA), Mass. Gen. L. ch. 12, §§ 11H—I (1986). Subse-

————

3a

quently, the panel opinion and dissent were withdrawn in order

to reconsider the MCRA claim in an en banc proceeding. We

now proceed with our en banc opinion, which includes and

reaffirms the panel’s position on the contract claim, but differs

from the panel majority by concluding that, as a matter of Mas-

sachusetts law, defendant is not subject to MCRA liability.

The plaintiffs, actress Vanessa Redgrave and Vanessa Red-

grave Enterprises, Ltd. (hereinafter Redgrave), brought suit

against the Boston Symphony Orchestra (hereinafter the BSO)

for cancelling a contract for Redgrave’s appearance as narrator

in a performance of Stravinsky’s ‘‘Oedipus Rex.’’ The cancel-

lation occurred in the wake of protests over Redgrave’s partici-

pation because of her support of the Palestine Liberation

Organization. She sought recovery both for breach of contract

and for violation of her civil rights under the MCRA.'

A jury awarded Redgrave $100,000 in consequential damages

caused by the BSO’s breach of contract; sitting in an advisory

capacity on Redgrave’s MCRA claim, the jury found for the

BSO. On the BSO’s motion for judgment notwithstanding the

verdict on the consequential damages issue, the district court

held that the evidence of consequential damages was sufficient

but that Redgrave could not recover these damages because of

First Amendment limitations. The court also held that the

MCRA does not impose liability on a party for acquiescence to

third party pressure. Redgrave appealed from these rulings, and

the BSO cross-appealed, arguing that the evidence of conse-

quential damages was insufficient.

We conclude, in Part II, that the district court erred in revers-

ing the jury’s award of consequential damages, but that Red-

grave has presented sufficient evidence to prove only $12,000 in

consequential damages, minus certain expenses. In Part III, we

report and accept the response of the Massachusetts Supreme

Judicial Court to our certified questions that acquiescence to

third party pressure is not a defense to an action under the

MCRA. In Part IV, we discuss the conclusions of the Justices

of the Supreme Judicial Court that, for different but consistent

1 Redgrave Enterprises Ltd. was a plaintiff only as to the contract

claim; it did not join the MCRA claim.

——S— eee eee

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reasons of Massachusetts law, the BSO is not subject to MCRA

liability in these circumstances. We therefore affirm the judg-

ment for the BSO on the MCRA claim and remand for entry of

a reduced judgment for consequential damages on the contract

claim.

I. PROCEDURAL HISTORY

In March 1982, the Boston Symphony Orchestra (BSO)

engaged Vanessa Redgrave to narrate Stravinsky's ‘‘Oedipus

Rex’’ in a series of concerts in Boston and New York. Follow-

ing announcement of the engagement, the BSO received calls

from its subscribers and from community members protesting

the engagement because of Redgrave’s political support for the

Palestine Liberation Organization and because of her views

regarding the state of Israel. On or about April 1, 1982, the

BSO cancelled its contract with Redgrave and its performances

of ‘‘Oedipus Rex.”’

Redgrave sued the BSO for breach of contract and for viola-

tion of the MCRA. The BSO argued at trial that the contract

rightfully was cancelled because the cancellation was the result

of ‘‘a cause or causes beyond the reasonable control’’ of the

BSO. In response to the civil rights claim, BSO agents testified

that they had not cancelled the performances in order to punish

Redgrave for her past speech or repress her future speech, but

because it was felt that potential disruptions, given the commu-

nity reaction, would implicate the physical safety of the audi-

ence and players and would detract from the artistic qualities of

the production.

Following a sixteen-day trial, the jury found that the BSO

wrongfully had breached its contract with Redgrave. On that

basis, the district court awarded Redgrave her stipulated per-

formance fee of $27,500. The jury also found that the BSO’s

cancellation had damaged Redgrave’s career by causing loss of

future professional opportunities, and awarded Redgrave

$100,000 in consequential damages. The district court found

that the question whether there was sufficient evidence to sup-

port a finding of $100,000 in consequential damages was a

Sa

**close and debatable’’ one, but concluded that there was suffi-

cient evidence to support the award. Nevertheless, the district

court overturned the grant of consequential damages,’ finding

that a First Amendment right of freedom of speech was impli-

cated by the theory of consequential damages advanced by Red-

grave and that Redgrave had not met the strict standards

required by the First Amendment for recovery of damages.

Redgrave v. Boston Symphony Orchestra, Inc., 602 F. Supp.

1189, 1193-1203 (D. Mass. 1985).

Redgrave’s MCRA claim was premised on the allegation that

the BSO had interfered, ‘‘by threats, intimidation, or coer-

cion,’’ with Redgrave’s exercise of free speech rights. Mass.

Gen. L. ch. 12, §§ 11H—I. The district court utilized the jury in

an advisory capacity on this claim. In response to special inter-

rogatories, the jury found that the BSO did not cancel the con-

tract because of the disagreements of BSO agents with

Redgrave’s political views. The district court stated that this

finding eliminated an ‘‘essential factual premise’’ of Redgrave’s

primary claim based on the MCRA. 602 F. Supp. at 1192.

But Redgrave also argued that, even if BSO agents had not

themselves disagreed with Redgrave’s political views and did

not cancel the contract because they wished to punish her for

past speech or to repress her future speech, the BSO did cancel

the contract in response to pressure from third parties who dis-

agreed with and wished to repress Redgrave’s speech. Redgrave

contended that such acquiescence to third parties on the part of

the BSO made it liable under the MCRA. The district court con-

cluded that acquiescence unaccompanied by express personal

disagreement with Redgrave’s views could not amount to the

‘threats, intimidation, or coercion’’ needed to establish a claim

under the MCRA. 602 F. Supp. at 1192. The district court,

therefore, rejected Redgrave’s acquiescence theory and entered

judgment for the BSO on Redgrave’s MCRA-cciaim.

Redgrave appealed from the district court’s entry of judg-

ment notwithstanding the verdict on the consequential damages

claim and from the judgment against her on the MCRA claim.

2 The court apparently submitted the factual question to the jury

either before it decided the legal issue or to protect against the need for a

retrial in the event of reversal on appeal.

SS

6a

The BSO cross-appealed, arguing that even if the First Amend-

ment should be found inapplicable to the consequential dam-

ages claim, the evidence of those damages was insufficient to

support the verdict.

Il. THE CONSEQUENTIAL DAMAGES CLAIM

A. Consequential Damages for Loss of

Professional Opportunities

In response to special interrogatories, the jury found that the

BSO’s cancellation of the ‘‘Oedipus Rex’’ concerts caused con-

sequential harm to Redgrave’s professional career and that this

harm was a foreseeable consequence within the contemplation

of the parties at the time they entered the contract. 602 F. Supp.

at 1204. A threshold question is whether Massachusetts con-

tract law allows the award of such consequential damages for

harm to a claimant’s professional career.

Redgrave’s consequential damages claim is based on the

proposition that a significant number of movie and theater

offers that she would ordinarily have received in the years 1982

and following were in fact not offered to her as a result of the

BSO’s cancellation in April 1982. The BSO characterizes this

claim as one for damage to Redgrave’s reputation,’ and argues

that the recent Massachusetts state court decisions in A/c Cone

v. New England Telephone & Telegraph Co., 393 Mass. 231,

471 N.E.2d 47 (1984), and Daley v. Town of West Brookfield,

19 Mass. App. Ct. 1019, 476 N.E.2d 980 (1985), establish that

Massachusetts law does not permit plaintiffs in breach of con-

tract actions to recover consequential damages for harm to rep-

utation.

In McCone v. New England Telephone & Telegraph Co.,

plaintiffs alleged that their employer’s breach of an implied

covenant of good faith had caused them loss of salary increases,

loss of pension benefits, and ‘‘damage to their professional rep-

3 The BSO notes that Redgrave contended that ‘‘the cancellation, as

communicated to other employers through the news media, harmed Vanessa

Redgrave because it carried with it the message ‘that Vanessa Redgrave was

unemployable,’ a claim for damage to Redgrave’s reputation.’’

7a

utations, disruption of their personal lives, and great pain of

body and mind.’’ 393 Mass. at 234 n.8. The Massachusetts

Supreme Judicial Court held that the claims for damages to rep-

utation and other emotional injury could not be sustained in the

suit because ‘‘these additional damages are not contract dam-

ages.’’ Id. In Daley v. Town of West Brookfield, a Massachu-

setts appellate court observed that ‘‘[d]amages for injury to

reputation are usually not available in contract actions,’’ noting

that the rationale most often given is that ‘‘such damages are

remote and not within the contemplation of the parties.’’ 19

Mass. App. Ct. at 1019 n.1, 476 N.E.2d at 980 n.1.

The BSO notes that Massachusetts is in agreement with virtu-

ally all other jurisdictions in holding that damages for reputa-

tion are not available in contract actions. See, e.g., Volkswagen

Interamericana, S.A. v. Rohlsen, 360 F.2d 437, 446 (1st Cir.

1966) (applying federal law); Stancil v. Mergenthaler Linotype

Co., 589 F. Supp. 78, 84-85 (D. Haw. 1984); O’Leary v. Ster-

ling Extruder Corp. , 533 F. Supp. 1205, 1209 (E.D. Wis. 1982);

Skagway City School Board v. Davis, 543 P.2d 218, 225-27

(Ala. 1975); Tousley v. Atlantic City Ambassador Hotel Corp.,

25 N.J. Misc. 88, 50 A.2d 472, 474-75 (N.J. Sup. Ct. 1947).

This impressive line of cases, however, becomes less impressive

for our purposes when the reasoning in these cases is analyzed

with reference to the particular claim put forth by Redgrave.

In cases that have analyzed the reasons for disallowing a con-

tract claim for reputation damages, courts have identified two

determinative factors. First, courts have observed that attempt-

ing to calculate damages for injury to reputation is ‘‘unduly

speculative.’’ Skagway City School Board, 543 P.2d at 225. See

O’Leary, 533 F. Supp. at 1209; Tousley, 50 A.2d at 474-75. In

many cases, the courts have viewed the claims for damages to

reputation as analogous to claims for physical or emotional dis-

tress and have noted the difficulty in ascertaining such damages

for contract purposes. See, e.g., Westwater v. Rector, Warden

and Vestry of Grace Church, 140 Cal. 339, 342, 73 P. 1055

(1903) (‘‘Damages to health, reputation, or feelings are not

clearly ascertainable either in their nature or origin.’’). As the

court in Skagway noted, an estimate of injury to reputation

‘‘must rest upon a number of imprecise variables,’’ including

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the causal connection between the breach of contract and the

injury to reputation and the amount by which any future earn-

ings would be decreased by causes other than the breach. Skag-

way City School Board, 543 P.2d at 225.

The second factor that courts identify is that damages for

injury to reputation ‘‘cannot reasonably be presumed to have

been within the contemplation of the parties when they entered

into the contract.’’ Skagway City School Board, 543 P.2d at

225. These courts state that the basic rule of Hadley v. Baxen-

dale, 9 Ex. 341, 156 Eng. Rep. 145 (1854), which requires that

contract damages be of the kind that arise naturally from the

breach of a contract or be of a kind that reasonably may have

been in the contemplation of the parties when they entered the

contract, cannot possibly be met in a claim for general damages

to reputation occurring as the result of a breach of contract. See

Skagway City School Board, 543 P.2d at 225; O’Leary, 533 F.

Supp. at 1209-10; Tousley, 50 A.2d at 474-75; Mastoras v. Chi-

cago, M. & St. P. R.R., 217 F. 153, 154 (W.D. Wash. 1914).

The Massachusetts Supreme Judicial Court seems to have

accepted this rationale as a legitimate one for disallowing claims

for injury to reputation as a contract damage. See Daley v.

Town of West Brookfield, 476 N.E.2d at 980 n.1 (‘‘The ration-

ale often given [for disallowing damages for injury to reputa-

tion in contract actions] is that such damages are remote and

not within the contemplation of the parties.’’). See also § Cor-

bin on Contracts, § 1007-11 at 70-87 (1964); 11 Williston, Con-

tracts, § 1344 at 226-29 (1968) (discussing Hadley v. Baxendale

general rule of consequential damages).

The claim advanced by Redgrave is significantly different,

however, from a general claim of damage to reputation. Red-

grave is not claiming that her general reputation as a profes-

sional actress has been tarnished by the BSO’s cancellation.

Rather, she claims that a number of specific movie and theater

performances that would have been offered to her in the usual

course of events were not offered to her as a result of the BSO’s

cancellation. This is the type of specific claim that, with appro-

priate evidence, can meet the Hadley v. Baxendale rule, as

adopted by the Massachusetts Supreme Judicial Court in John

Hetherington & Sons, Ltd. v. William Firth Co., 210 Mass. 8,

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21; 95 N.E. 961, 964 (1911) (in breach of contract action,

injured party receives compensation for any loss that follows as

a natural consequence from the breach, was within the contem-

plation of reasonable parties as a probable result of breach, and

may be computed by ‘“‘rational methods upon a firm basis of

- facts’’). As the district court correctly noted in a preliminary

memorandum:

{I)f plaintiffs proved other employers refused to hire Red-

grave after termination of the BSO contract because of

that termination (that loss of the other employment ‘‘fol-

lowed as a natural consequence’’ from the termination of

the contract), that this loss of other employment would

reasonably have been foreseen by the parties at the time of

contracting and at the time of termination, and that dam-

ages are rationally calculable, then plaintiffs may be enti-

tled to damages that include monies for loss of the other

employment. Although plaintiffs have a heavy burden to

carry here, it cannot be said with certainty at this time that

they wiil not be able to meet this burden.

Redgrave v. BSO, 557 F. Supp. 230, 234 (D. Mass. 1983).

The jury was given appropriate instructions to help it deter-

mine whether Redgrave had suffered consequential damages

through loss of future professional opportunities. They were

told to find that the BSO’s cancellation was a proximate cause

of harm to Redgrave’s professional career only if they deter-

mined that ‘Sharm would not have occurred but for the cancel-

lation and that the harm was a natural and probable

consequence of the cancellation.’’ Redgrave v. BSO, 602 F.

Supp. at 1211. In addition, they were told that damages should

be allowed for consequential harm ‘‘only if the harm was a

foreseeable consequence within the contemplation of the parties

to the contract when it was made.’’ Jd. at 1212. In response to

special interrogatories, the jury found that the BSO’s cancel-

lation caused consequential harm to Redgrave’s career and that

the harm was a foreseeable consequence within the contempla-

tion of the parties. 602 F. Supp. at 1204.

Although we find that Redgrave did not present sufficent evi-

dence to establish that the BSO’s cancellation caused conse-

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quential harm to her professional career in the amount of

$100,000, see infra at 20-32, we hold that, as a matter of Massa-

chusetts contract law, a plaintiff may receive consequential

damages if the plaintiff proves with sufficent evidence that a

breach of contract proximately caused the loss of identifiable

professional opportunities. This type of claim is sufficiently dif-

ferent fro.1 a nonspecific allegation of damage to reputation

that it i ppropriately falls outside the general rule that reputa-

tion damages are not an acceptable form of contract damage.

B. First Amendment Restrictions

The district court found that, although consequential dam-

ages for loss of professional opportunities could be a legitimate

contract claim, it was required to overturn the jury’s verdict of

$100,000 because Redgrave had not met the strict standards

required by the First Amendment for the recovery of such dam-

ages. According to the district court, the only theory that Red-

grave could advance for establishing consequential damages

necessarily implicated First Amendment concerns. As the court

explained, ‘‘the only possible mechanism of harm to Red-

grave’s professional career, revealed by the evidence, is the

alleged influence of some statement made by the BSO on later

decisions of others—a statement of fact or opinion implied in

BSO’s cancellation, or express or implied in BSO’s press

release.’ Redgrave v. BSO, 602 F. Supp. at 1197. In other

words, ‘‘an inescapable element of the claimed causal connec-

tion between BSO’s cancellation and consequential harm to

Redgrave’s professional career’’ was for ‘‘a factfinder reason-

ably [to] infer that others, upon receiving the news of BSO’s

cancellation, interpreted the cancellation as conveying a mes-

sage about Redgrave.”’ Jd.

Having concluded that Redgrave’s theory of consequential

damages necessarily rested on the premise that the BSO had

conveyed a message about her to others, the district court felt it

was required to apply heightened First Amendment scrutiny to

any claim for damages stemming from such communicative

activity. It made the threshold decision that state action would

exist because it, as a court, would enter a judgment for such

lla

damages. 602 F. Supp. at 1199. The court then applied the stan-

dard governing damages in defamation cases. Accordingly, it

required that Redgrave show that ‘‘BSO has impliedly commu-

nicated to others some material issue of fact (and not merely

opinion) about Redgrave that it knew to be false, or that BSO

acted with reckless disregard for the truth or falsity of a mate-

rial statement of fact it impliedly communicated.’’ 602 F. Supp.

at 1201. The court concluded that, in any message the BSO

could be said to have sent, no statement of fact to which the

jury could apply a ‘‘reckless falsity’’ test could be disentangled

from the BSO’s statements of opinion. Further, any statements

of opinion by the BSO would be protected absolutely under the

First Amendment. /d. at 1201-03. Thus, the court found that

Redgrave had not overcome the significant obstacles created by

the First Amendment to recovery of consequential damages.

The district court is correct in stating that an act can be a pro-

tected form of First Amendment activity. See, e.g., NAACP v.

Claiborne Hardware Co., 458 U.S. 886 (1982) (economic boy-

cott may be form of First Amendment activity); Buckley v.

Valeo, 424 U.S. 1 (1976) (contributing money is form of

speech); Cohen v. fornia, 403 U.S. 15 (1971) (wearing sign

on back of jacket is form of speech).

The BSO’s cancellation of its contract with Redgrave was

not, however, an act intended to be a form of symbolic speech

or a ‘‘statement’’ by the BSO.* As BSO agents testified, the

press release announcing the BSO’s cancellation went through a

number of drafts in order to remove any statement or implica-

tion that Redgrave was too controversial or dangerous to hire.

In fact, the press release did not even refer to Redgrave by

4 Weare not convinced that the cancellation of a contract could ever

receive First Amendment protection. Unlike engaging in an economic boy-

cott, burning a draft card, or wearing an armband, cancelling a contract is

not a traditional form of protest. We would be wary of adopting a principle

that would allow a party wishing to breach its contract for economic objec-

tives to hide behind First Amendment protections merely by stating that it

has cancelled the contract in order to make a statement about the other

party. This question, however, is not before us in this case.

12a

name.° Indeed, in response to special verdict question 11A, the

jury found that the BSO’s cancellation and press release did not

‘impliedly state to others that BSO’s managerial agents held

the opinion that Vanessa Redgrave was so controversial because

of her publicly expressed political views that the risks associated

with the series of performances in Boston and New York, in

which she was to appear as narrator, were too great to be

acceptable to a prudently managed symphony orchestra.’’ 602

F. Supp. at 1205. Thus, the evidence does not support an infer-

ence that the BSO intended its cancellation to act as a symbolic

message to others.

An act not intended to be communicative does not acquire

the stature of First-Amendment-protected expression merely

because someone, upon learning of the act, might derive some

message from it. Nor is such an act entitled to special protection

merely because others speak about it. Accordingly, we believe

the district court erred in reasoning that the causal link between

the BSO’s contract cancellation and Redgrave’s harm necessar-

ily involved protected expression by the BSO.

Redgrave’s counsel presented two distinct avenues of causa-

tion through which the jury could find that the BSO’s cancel-

lation caused Redgrave consequential harm and the jury was

instructed on both grounds. Besides contending that the BSO’s

cancellation and press release impliedly stated to others that

Redgrave was too controversial to be acceptable to a prudently

managed symphony orchestra, Redgrave also contended that

*“*since BSO was a prestigious cultural organization, the very

fact that it decided to cancel rather than proceed with perfor-

mances in which Vanessa Redgrave was to appear would tend to

influence others not to offer her future professional opportuni-

ties.” Redgrave v. BSO, 602 F. Supp. at 1212. The jury was

instructed to ‘‘determine whether the evidence supports either,

5 It is true that, as a result of previous press reports regarding the

community reaction to the Redgrave engagement, the public could easily

infer that the BSO’s cancellation of the performances resulted from the furor

over Redgrave. Nevertheless, the fact that the BSO made an intentional

effort not to mention Redgrave by name in the press release indicates that the

act of cancellation was not intended to be a form of expression.

l3a

both, or neither of these contentions’’ in deciding whether the

BSO’s cancellation caused Redgrave consequential harm. Jd.

The jury rejected the ‘‘implied message’’ theory yet still

found that the BSO’s contract cancellation caused Redgrave to

lose future professional opportunities. Apparently, the jury felt

that the BSO’s cancellation had caused harm to Redgrave’s

career, despite its conclusion that the BSO had not intentionally

sent any implied message regarding Redgrave. Theodore Mann,

a director, testified that he chose not to offer Redgrave a job in

a theater performance because

[t]he Boston Symphony Orchestra had cancelled, termi-

nated Ms. Redgrave’s contract. This had a—this is the pre-

mier or one of the premier arts organizations in America

who, like ourselves, seeks support from foundations, cor-

porations, individuals; have subscribers; sell individual

tickets. I was afraid . . . and those in my organization

were afraid that this termination would have a negative

effect on us if we hired her.

App. 1302a. Thus, the jury could appropriately have found that

even though the BSO did not intend its contract cancellation to

be a purposeful symbolic communication, other performing

companies may have derived, or feared that their supporters

might derive, some message from the cancellation, causing

them concern about hiring Redgrave. Under this theory, the

jury could have found that the act of cancellation, unprotected

by the First Amendment, was the proximate cause of Red-

grave’s harm.

The distyict court correctly stated that ‘‘plaintiffs must prove

that in some way information about BSO’s action was commu-

nicated to others.’’ 602 F. Supp. at 1197. However, as amici

correctly point out, the trial court erred in confusing communi-

cation about the BSO’s contract cancellation with the notion of

an implied communication of a particular message by the BSO

regarding Redgrave. Absent unusual circumstances suggesting

primary interest in communicating an idea transcending the

immediate act, a contract cancellation would not trigger the

concerns ordinarily protected by the First Amendment. Indeed,

under the district court’s ruling, the cancellation of almost any

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contract with a notable figure could effectively be transformed

into a statement protected by the First Amendment, thereby

unnecessarily diluting the protections intended by contract law.

Thus, although Redgrave must meet the ordinary strict contract

requirements for finding consequential damages, see infra at

20-21, no additional requirements need be imposed in this case

because of the strictures of the First Amendment.

C. Sufficiency of the Evidence

The requirements for awarding consequential damages for

breach of contract are designed to ensure that a breaching party

pays only those damages that have resulted from its breach.

Thus, to receive consequential damages, the plaintiff must

establish a ‘‘basis for an inference of fact’’ that the plaintiff has

actually been damaged, Williston, Contracts § 1345 at 231, and

the factfinder must be able to compute the compensation ‘‘by

rational methods upon a firm basis of facts.’’ John Hether-

‘ ington & Sons, 210 Mass. at 21, 95 N.E. at 964.

In analyzing the evidence presented by Redgrave on her claim

for consequential damages, we are guided by the basic principle

that on a motion for judgment notwithstanding the verdict the

evidence must be viewed in the light most favorable to the party

for whom the jury found, and that that party must be given

“the benefit of every favorable inference that may be fairly

drawn.’’ Borras v. Sea-Land Service, Inc., 586 F.2d 881, 885

(ist Cir. 1978) (quoting Dumas v. MacLean, 404 F.2d 1062,

1064 (1st Cir. 1968)). In examining the evidence, however, we

must not neglect uncontradicted evidence offered by the other

party. Layne v. Vinzant, 657 F.2d 468, 472 (ist Cir. 1981);

Allen Pen Co. v. Springfield Photo Mount Co., 653 F.2d 17, 19

(1st Cir. 1981). Further, the party for whom the jury found is

not entitled to ‘‘unreasonable inferences which rest on conjec-

ture and speculation.’’ Carlson v. American Safety Equipment

Corp., 528 F.2d 384, 386 (lst Cir. 1976); see also Goldstein v.

Kelleher, 728 F.2d 32, 39 (1st Cir. 1984).

In order for Redgrave to prove that the BSO’s cancellation

resulted in the loss of other professional opportunities, she

must present sufficent facts for a jury reasonably to infer that

Hlidisisscnmnceneresermmismnisciaieisiauidiiiiihiiidlisiiics sais

1Sa

Redgrave lost wages and professional opportunities subsequent

to April 1982, that such losses were the result of the BSO’s can-

cellation rather than the result of other, independent factors,

and that damages for such losses are capable of being ascer-

tained ‘‘by reference to some definite standard, either market

value, established experience or direct inference from known

circumstances.’’ John Hetherington & Sons, 210 Mass. at 21,

95 N.E. at 964. During trial, evidence was presented regarding

losses Redgrave allegedly suffered in film offers and American

theater offers. Based on this testimony, the jury found that the

BSO’s cancellation of its contract with Redgrave caused Red-

grave $100,000 in consequential damages. We find that the evi-

dence presented by Redgrave was not sufficent to support a

finding of damages greater than $12,000, less expenses.

Most of Redgrave’s annual earnings prior to April 1982 were

derived from appearances in films and the English theater.°

Redgrave presented evidence at trial that she earned more than

$200,000 on the average since her company’s fiscal year 1976,

and she testified that she had a constant stream of offers from

which she could choose films that had secure financial backing.

After the BSO’s cancellation in April 1982, Redgrave con-

tended, her career underwent a ‘‘startling turnabout.’’ Red-

grave testified that she did not work at all for the fourteen

months following the cancellation and that the only offers she

received during that time were for films with insufficent finan-

cial backing.

The evidence demonstrates that Redgrave accepted three firm

film offers in the fourteen months following the BSO cancel-

lation. If these three films had been produced, Redgrave would

have earned $850,000 during that period. The first offer, for a

film entitled Annie’s Coming Out, was for a role in which Red-

grave had expressed interest in February 1982, two months

prior to the BSO cancellation. The offer for the role was made

in July 1982, a short time after the BSO’s cancellation, and was

6 Although Redgrave received a number of offers to appear in Broad-

way plays between 1975 and 1980, the only offer she accepted and received

payment for was a 1976 play, Lady From the Sea, performed in off-

Broadway's Circle in the Square theater, for which Redgrave received

$9,000.

iit

a Eee

l6a

finalized in August 1982. The film was to be financed by Film

Australia, a government production company, and no evidence

was presented that Redgrave believed the film might experience

financial difficulties. Redgrave’s fee for the film was to be

$250,000.

From July 1982 until approximately the end of October 1982,

Redgrave believed that she would be filming Amnie’s Coming

Out sometime during the fall.’ Because of that commitment,

Redgrave turned down other firm offers that had secure finan-

cial backing. These included an offer received in July 1982 to do

a cameo appearance in a Monty Python film entitled Yellow-

beard for $10,000 and an offer received in September 1982 to

star in the television film Who Will Love My Children? for

$150,000. In late October or early November 1982, Redgrave

was informed that Annie’s Coming Out would not be produced

because of financial difficulties. No evidence was presented that

the film’s financial failure was related to the BSO cancellation.

In February 1983, Redgrave accepted an offer to appear in

the film No Alternatives, for a fee of $350,000. Until June or

July of 1983, Redgrave assumed that she would be filming No

Alternatives. During that period, Redgrave turned down other

offers, including an offer to appear in a film about Andre

Sakharov for a fee of $70,000.° In June or July of 1983, Red-

grave was informed that No Alternatives would not be filmed

because of financial difficulties. Redgrave received $25,000 as a

forfeiture on the contract.

In June 1983, Redgrave accepted an offer to appear in a film

entitled Track 39, for a fee of $250,000. This film fell through

in late July 1983. There was no allegation that the financial fail-

7 Redgrave testified that the original departure date for Australia had

been postponed from October 11th to November 2d, and that she could not

recall whether it was in late October or early November that she found out

that the film had fallen through.

8 Redgrave testified that she turned down the offer for the Sakharov

film because she obtained ‘‘alternative work’’ and because she was afraid the

film might be used as anti-communist propaganda. There was no evidence

that this film did not have secure financial backing.

17a

ures of either No Alternatives or Track 39 were directly related

to the BSO cancellation.

Although there is no doubt that Redgrave did not have a suc-

cessful financial year following the BSO cancellation, we can-

not say that she presented sufficient evidence to prove that her

financial difficulties were caused by the BSO cancellation. No

evidence was presented that, at the time she accepted the offer

for Annie’s Coming Out, Redgrave believed the film would

experience financial difficulties.’ In addition, there was no alle-

gation that the offers Redgrave turned down because of her

commitment to Annie’s Coming Out, such as offers to appear

in Yellowbeard and Who Will Love My Children?, did not have

firm financial backing. If Annie’s Coming Out had been pro-

duced, Redgrave would have earned $250,000 in the year fol-

lowing the BSO cancellation—an amount equal to Redgrave’s

average earnings before April 1982.

Redgrave contends, however, that the film offers she received

following the BSO cancellation lacked secure financial backing

and were thus significantly different from offers she had

received prior to the cancellation.'® Thus, although Redgrave

would have received $600,000 had No Alternatives and Track

39 been produced, she argues that the fact that she had to

accept two films that ultimately were not produced was itself a

result of the BSO cancellation.

We have some doubt as to whether Redgrave presented suffi-

cent evidence to prove that the type of film offers she received

in the year following the BSO cancellation were radically differ-

ent from the film offers received before the cancellation. On

direct examination, Redgrave testified regarding her previous

performances, starting from 1966. As to most of the years,

Redgrave testified solely regarding the work she did, rather

than the offers she received, noting that she could only

9 In fact, Redgrave expressed an interest in filming Annie’s Coming

Out in February 1982, two months before the BSO cancellation.

10 We assume that Redgrave’s claim must refer primarily to offers

made after November 1982, when she learned that Annies Coming Out

would not be produced. Offers made before that time, for projects that

would have conflicted with the filming of Annie, presumably would not have

been accepted by Redgrave in any case.

a

18a

**remember what [she] actually did at the moment’’ and not the

offers she had received. Redgrave did testify that she received

four film offers in 1980, none of which she accepted, and four

film offers in 1981, two of which she accepted. No evidence was

presented, however, regarding the financial backing of those

films that were offered to Redgrave but which she did not

accept. Thus, the evidence does not present an effective com-

parison between the type of film offers received before and

after the BSO cancellation and we are left primarily with Red-

grave’s allegation that the film offers received in the two time

periods were significantly different.

Even if we accept, however, that Redgrave proved she had

experienced a drop in the quality of film offers following the

BSO cancellation, Redgrave must also prove that the drop was

proximately caused by the BSO cancellation and not by other,

independent factors. Redgrave failed to carry her burden of

presenting evidence sufficient to allow a jury reasonably to

infer this causal connection.

The defense introduced evidence that Redgrave’s political

activities and statements had generated much media attention

prior to the incident with the BSO. Redgrave conceded that her

agents had informed her, prior to April 1982, that certain pro-

ducers were hesitant to hire her because of the controversy she

generated. And, in a newspaper interview in February 1982,

Redgrave stated that she ‘‘had lost a lot of work because of her

political beliefs’’ but that every time there had been a move to

stop her working, ‘‘an equally terrific response [came] forward

condemning any witch hunts.’’ App. 983.

To the extent that Redgrave may have experienced a decline

in the quality of film offers received subsequent to April 1982,

that decline could have been the result of Redgrave’s political

views and not the result of the BSO’s cancellation.'' Even if the

cancellation highlighted for producers the potential problems in

hiring Redgrave, it was Redgrave’s burden to establish that, in

11 In addition, immediately following the BSO cancellation, Redgrave

stopped using the services of her long-term agent, Bruce Savan, and engaged

the services of the William Morris agency. After one year, Redgrave re-

engaged Savan. The BSO contends that the change in agencies could have

been an additional factor causing any decline in offers.

19a

some way, the cancellation itself caused the difference in film

offers rather than the problems as highlighted by the cancel-

lation. Redgrave produced no direct evidence from film pro-

ducers who were influenced by the cancellation. Thus, the

jury’s inference that the BSO cancellation had caused Redgrave

consequential damages was one based more on ‘‘conjecture and

speculation,’’ Carlson v. American Safety Equipment Corp..,

§28 F.2d at 386, than on a sufficent factual basis.

Redgrave also claims that the BSO’s cancellation caused a

drop in her offers to perform on Broadway. Bruce Savan, Red-

grave’s agent, testified regarding all offers to perform in Ameri-

can theater that had been made to Redgrave prior to April 1982.

The offers averaged from two to four plays in the years 1976-

1980. There was no evidence of any offers to perform on

Broadway made to Redgrave in 1981, the year immediately pre-

ceding the BSO cancellation. Redgrave accepted only one of the

offers made during this time period, appearing in Lady From

the Sea in off-Broadway’s Circle in the Square in 1976.

Redgrave contends that, as a result of the BSO cancellation,

she no longer received offers to appear on Broadway. She testi-

fied that in April 1983 she was appearing in a successful English

theater production of The Aspern Papers and was led to believe

by the producers that the show would move to New York.

Although it was Redgrave’s opinion that the reason the play did

not move to Broadway was because of the “‘situation’’ caused

by the BSO cancellation, there was no testimony from the pro-

ducers or others as to why the production did not go to Broad-

way. Redgrave also testified that in August 1983 she was asked

by the Jujamson producers to appear in The Abdication, but

that the play was never produced. Again, there was no testi-

mony from the producers or others as to why the production

did not materialize. In addition, Redgrave testified that Lillian

Hellman had wished Redgrave to portray Hellman in a theater

production on Broadway, but that Hellman was concerned

about the BSO incident. Finally, Redgrave testified that Theo-

dore Mann had considered offering her a role in Heartbreak

House at Circle in the Square, but decided not to extend the

offer because of the ramifications of the BSO cancellation.

—————

20a

Theodore Mann was the one producer who testified regard-

ing his decision not to employ Redgrave in a Broadway produc-

tion. He explained that

the Boston Symphony Orchestra had cancelled, termi-

nated Ms. Redgrave’s contract. This had a—this is the pre-

mier or one of the premier arts organizations in America

who, like ourselves, seeks support from foundations, cor-

porations, individuals; have subscribers; sell individual

tickets. I was afraid . . . and those-in my organization

were afraid that this termination would have a negative

effect on us if we hired her. And so we had conferences

about this. We were also concerned about if there would

be any physical disturbances to the performance. .. .

And it was finally decided that we would not hire [Red-

grave] because of all the events that had happened, the

canceNation by the Boston Symphony and the effects that

we felt it would have on us by hiring her.

App. 1302a.

The evidence presented by Redgrave concerning her drop in

Broadway offers after April 1982, apart from Mann’s testi-

mony, is not sufficient to support a finding of consequential

damages.'* We do not, of course, question Redgrave’s credibil-

ity in any way. Our concern is with the meager factual evidence.

Redgrave had to introduce enough facts for a jury reasonably

to infer that any drop in Broadway offers was proximately

caused by the BSO cancellation and not by the fact that pro-

ducers independently were concerned with the same factors that

had motivated the BSO. Mann’s testimony itself reflects the

fact that many producers in New York may have been hesitant

about hiring Redgrave because of a feared drop in subscription

support or problems of physical disturbances. Apart from

12 We note that Redgrave’s claim regarding American theater offers is

both stronger and weaker than her claim regarding film offers. On the one

hand, Redgrave indeed did not receive any Broadway offers in 1982, in con-

trast to various film offers and inquiries that she did receive throughout

1982. On the other hand, Redgrave failed to present evidence of any Broad-

way offers made to her in 1981, weakening her assertion that a dramatic

decline in such offers occurred subsequent to April 1982.

2la

Mann’s testimony, Redgrave presented nothing other than the

fact that three expected offers or productions did not material-

ize. This type of circumstantial evidence is not sufficent to sup-

port a finding of consequential damages.

In addition, we note that it would be difficult for any assess-

ment of damages resulting from the lack of Broadway theater

offers to meet the standard that damages must be ‘‘capable of

ascertainment by reference to some definite standard, either

market value, established experience or direct inference from

known circumstances.’’ John Hetherington & Sons, 210 Mass.

at 21,95 N.E. at 964. See Lowrie v. Castle, 225 Mass. 37, 51-52,

113 N.E. 206 (1916); Williston, Contracts, § 1346 at 239-240.

The three specific performances to which Redgrave referred,

other than Mann’s, were never performed on Broadway and

there is no indication of the compensation Redgrave would

have received. In addition, Redgrave had accepted only one

Broadway offer among the many she had received over the

years because, according to Redgrave, the scripts were not good

enough for her first Broadway appearance. There was no evi-

dence that Redgrave would necessarily have accepted any

Broadway offer made in 1982.

Mann’s testimony regarding the production of Heartbreak

House is the one piece of evidence from which reasonable fact-

finders could draw conflicting inferences and upon which a rea-

sonably ascertainable damage award could be granted. We

therefore defer to the inferences drawn by the jury from that

testimony and grant Redgrave damages on that basis.

Mann’s testimony reveals that, in considering whether to hire

Redgrave, he and his partners were concerned about losing sup-

port from foundations and subscribers, having difficulty selling

tickets, and dealing with possible physical disruptions. These

are factors that result from the community response to Red-

grave’s political views. They are the same factors that appar-

ently motivated the BSO to cancel its contract with Redgrave

and are not the result of that cancellation. Thus, one possibly

could infer from Mann’s testimony that the BSO cancellation

was not a proximate cause of the damage suffered by Redgrave

in being denied the part in Heartbreak House.

22a

Mann also testified, however, that he and his partners were

affected by the BSO cancellation because the BSO was a pre-

mier arts organization and was dependent on the same type of

support as Circle in the Square. A jury reasonably could infer

that the BSO’s cancellation did more than just highlight for

Mann the potential problems that hiring Redgrave would cause

but was actually a cause of Mann’s decision, perhaps because

Mann’s theater support was similar to that of the BSO or

because Mann felt influenced to follow the example of a ‘‘pre-

mier arts organization.’’ Because this is a possible inference

that a jury could draw from Mann’s testimony, we defer to that

inference. We therefore find that Redgrave presented sufficent

evidence to prove consequential damages of $12,000, the fee

arrangement contemplated by Mann for Redgrave’s appearance

in Heartbreak House, minus expenses she personally would

have incurred had she appeared in the play.

Ill.

THE MASSACHUSETTS CIVIL RIGHTS CLAIM

AND THE DEFENSE OF ACQUIESCENCE TO

THIRD-PARTY PRESSURE

The factor that converts this case from a garden variety, if

not simple, contract action into an exotic plant without very

apposite precedents is the MCRA (and its judicial gloss as

added by the Massachusetts Supreme Judicial Court). As we

shall see, the MCRA extends the 42 U.S.C. § 1983 concept of a

civil rights claim against government officials to a claim against

private individuals, so that it is no defense to the MCRA to

show that the defendant’s action was not “‘state action.’’ Fur-

ther, as with a typical civil rights claim against a government

official, it is no defense to the MCRA to show that a defendant

acted in response to third-party pressure. Finally, the sweeping

liability resulting from the absence of these defenses may be

limited by a constitutional right of free speech.

23a

A. The Nature of the Claim

The MCRA creates a private cause of action for injunctive

and other equitable relief, including damages, against ‘‘any per-

son or persons, whether or not acting under color of law, [who]

interfere by threats, intimidation or coercion, or attempt to

interfere by threats, intimidation or coercion, with the exercise

or enjoyment by any other person or persons of rights secured

by the constitution or laws of the United States, or of rights

secured by the constitution or laws of the commonwealth.”’

Mass. Gen. L. ch. 12, §§ 11H-I (1986). A right is ‘‘secured’’

against private parties under the MCRA even though the consti-

tutional provision from which it emanates applies only to gov-

ernment action. See Bell v. Mazza, 394 Mass. 176, 474 N.E.2d

1111 (1985). In this fashion the MCRA dispenses with the state

action requirement of ordinary civil nghts claims, by permitting

a plaintiff to sue a private party for action that would be,

absent the MCRA, forbidden only to state actors.”

Redgrave alleged that the BSO interfered with her ‘‘secured”’

rights of free speech and free association under the First

Amendment" and the Massachusetts Constitution.’* Redgrave

13. Although Massachusetts has omitted, state action as an element of

an MCRA claim, Massachusetts’ own action in creating rights and duties

under the MCRA is, of course, state action. Consequently, rights and duties

under the MCRA are limited by the various constitutional constraints on

State action.

14 ‘*Congress shall make no law. . . abridging the freedom of speech

. or the right of the people peaceably to assemble, and to petition the

Government for a redress of grievances.’’ This amendment is, of course, now

applicable to the states.

1S Article 16 of the Declaration of Rights to the Constitution of the

Commonwealth guarantees that ‘‘[t]he right of free speech shall not be

abridged.”’

Article 19 of the Massachusetts Declaration of Rights provides that ‘‘[t]he

people have a right, in an orderly and peaceable manner, to assemble to con-

sult upon the common good; give instructions to their representatives, and to

request of the legislative body, by the way of addresses, petitions, or remon-

strances, redress of the wrongs done them, and of the grievances they suf-

fer.””

———— aE

24a

asserted that her secured rights were violated whether the BSO

cancelled the contract because its own agents disagreed with her

political views and intended to punish her for past speech or

repress her future speech, or whether the BSO cancelled the

contract because it acquiesced to pressure from third parties

who disagreed with her views and intended to punish her or chill

her expression.

B. The Findings Below

The jury, in answer to a special interrogatory, found that the

BSO did not cancel the contract because its own agents dis-

agreed with Redgrave’s political views. Although the district

court found that the BSO cancelled because of outside pressure,

the court held that Redgrave’s MCRA claim failed, because

acquiescence to third party pressure, absent any discriminatory

intent, did not constitute ‘‘threats, intimidation, or coercion”’

under the MCRA.

The court did not go further and make a finding as to the pre-

cise reason why the BSO cancelled, but it did find credible the

testimony of BSO officials that the BSO cancelled because of

concerns over the physical safety of the performers and audi-

ence and over disruptions that might jeopardize the artistic

qualities of the performance. The court cited the testimony of,

among others, Seiji Ozawa, the BSO’s Music Director, who

explained that his conception of ‘‘Oedipus Rex’’ required an

‘‘atmosphere of hearing’’ in which both performers and audi-

ence could concentrate, rather than an atmosphere influenced

by shouting, booing, and the presence of uniformed police.

Earlier in the case, the district court had noted that ‘‘the extent

to which a broad interpretation of the MCRA could interfere

with the BSO’s First Amendment rights to make artistic judg-

ments may depend upon whether the factfinder decides that the

cancellation of the concerts was at least in part for artistic rea-

sons.’’ In ultimately ruling for the BSO on Redgrave’s MCRA

claim, however, the district court did not reach this constitu-

tional issue.

25a

C. Our Certified Questions and the Answers

Because we felt that Redgrave’s MCRA claim turned on a sig-

nificant question of Massachusetts law on which we found no

controlling precedent, we certified two questions of law to the

Supreme Judicial Court of the Commonwealth pursuant to

Supreme Judicial Court Rule 1:03. The questions were as fol-

lows:

1. Under the Massachusetts Civil Rights Act, Mass.

Gen. Laws ch. 12, § 11H and § 111, may a defendant be

held liable for interfering with the rights of another per-

son, by ‘“‘threats, intimidation, or coercion’’, if the defen-

dant had no personal desire to interfere with the rights of

that person but acquiesced to pressure from third parties

who did wish to interfere with such rights?

2. If a defendant can be held liable under the Massachu-

setts Civil Rights Act for acquiescence to third party pres-

sure, is it a defense for the defendant to show that its

actions were independently motivated by additional con-

cerns, such as the threat of extensive economic loss, physi-

cal safety, or particular concerns affecting the defendant's

course of business?

The Supreme Judicial Court answered ‘‘Yes’’ to the first

question. It held:

Making an exemption for civil rights deprivations result-

ing from third-party pressure ‘‘would reward and encour-

age’’ the very conduct which the substantive statutes

prohibit. See Sarni Original Dry Cleaners, Inc. v. Cooke,

388 Mass. 611, 618 n.7, 447 N.E.2d 1228 (1983). Whether

the issue is phrased in terms of the existence of a specific

intent requirement under the Massachusetts Civil Rights

Act or a third-party pressure exemption from the statute,

recognizing such an exemption would tend to eviscerate

the statute and defeat the legislative policies behind the

statute. Persons seeking to interfere with the civil rights of

others in violation of the statute may not know or believe

that the interference may lead to civil or criminal liability.

a

26a

Thus, to be effective, the provisions of §§ 11H and 111

must apply to any threatening, intimidating, or coercive

behavior regardless of whether the defendant specifically

intended to interfere with a right to which the plaintiff is

entitled. Accordingly, we answer ‘‘yes’’ to the first ques-

tion.

Redgrave v. Boston Symphony Orchestra, 399 Mass. 93, 100,

502 N.E.2d 1375, 1379 (1987). The second question was

answered ‘‘No.’’ The court held:

As an abstract proposition, fear of business disruption,

fear for economic loss, or fear for physical safety are not

justifications under §§ 11H and 111. The legislative intent

would be negated if such defenses were permitted. See

Sarni Original Dry Cleaners, Inc. v. Cooke, supra. In an

analogous context, the Supreme Court has rejected the

notion that private biases and injuries that may be inflicted

as a result of such biases are permissible justifications for

deprivations of constitutional rights. Palmore v. Sidoti,

466 U.S. 429, 104S. Ct. 1879, 80 L.Ed.2d 421 (1984). Fear

that the prejudice of third-party actors may lead to a

breach of the peace has also been rejected as a justification

for deprivations of civil rights. Buchanan v. Warley, 245

U.S. 60, 81, 38 S. Ct. 16, 20, 62 L.Ed. 149 (1917). We rec-

ognize that explicit and imminent danger of physical harm

might well in some circumstances justify interference with

an individual’s civil rights (cf, Brandenburg v. Ohio, 395

U.S. 444, 447, 89 S. Ct. 1827, 1829, 23 L.Ed.2d 430

[1969]), but the certified question raises no such premise.

Our answer to the second certified question is, ‘‘No.”’

399 Mass. at 101, 503 N.E.2d at 1379-80.

These answers effectively disposed of the district court’s view

that acquiescence to third party pressure was a defense to an

MCRA action. At first blush, this might suggest, as our dissent-

ing colleagues insist, that we must now confront the BSO’s

additional argument for affirmance—that the First Amend-

ment protects it from MCRA liability. The response of the SJC,

however, significantly expanded upon and went beyond the

SE ————

27a

answers to our specific questions. The nature and deliberateness

of these additional remarks convince us that, as a matter of

Massachusetts law, the BSO may not in these circumstances be

held liable under the MCRA.

IV. THE MASSACHUSETTS CIVIL RIGHTS

ACT CLAIM: THE TEACHINGS OF THE

SUPREME JUDICIAL COURT

The response of the Supreme Judicial Court to our questions

was divided among three groups of Justices: the Chief Justice,

writing for himself and Justices Liacos and Nolan; Justice

Wilkins, joined by Justice Abrams, concurring; and Justice

O’Connor, joined by Justice Lynch, dissenting. All three

groups thought it necessary to identify an issue we had not

raised expressly in our two certified questions. All three groups

indicated, in tones ranging from strong suggestion to outright

certainty, a view that the BSO should not be held liable under

the MCRA for exercising its free speech right not to perform.

Although all of the Justices’ reflections on this issue techni-

cally may fall under the heading of dicta, they are so deliberate,

sO unanimously expressed, and involve such a basic proposi-

tion, that we feel constrained to listen carefully. The certifica-

tion process is the only opportunity for direct dialogue between

a federal and a state court. We think it pointless to turn a deaf

ear to all but the direct responses to formal questions where, as

here, other important issues clearly are implicated. To do so

would be to elevate form over substance, to ignore a helpful

opportunity to interpret state law correctly, and to demean the

principles of comity and federalism. ‘‘In the absence of a defin-

itive ruling by the highest state court, a federal court may con-

sider ‘analogous decisions, considered dicta, scholarly works,

and any other reliable data tending convincingly to show how

the highest court in the state would decide the issue at hand,’

taking into account the broad policies and trends so evinced.”’

Michelin Tires (Canada) Ltd. v. First National Bank of Boston,

666 F.2d 673, 682 (Ist Cir. 1981) (quoting McKenna v. Ortho

Pharmaceutical Corp. , 622 F.2d 657, 663 (3d Cir. 1980)).

|

28a

As two commentators recently have noted:

[T]he ability of the answering court to reshape or add to

the issues is necessary to further the goals of certification.

The answering court may be best situated to frame the

question for precedential value and to control the develop-

ment of its laws. If state courts take offense at a poorly

framed question, they may miss a genuine opportunity to

settle state law on a particular point.

Corr & Robbins, /nterjurisdictional Certification and Choice of

Law, 41 Vand. L. Rev. 411, 426 (1988). See also Martinez v.

Rodriquez, 394 F.2d 156, 159 n.6 (Sth Cir. 1968) (form of certi-

fied question should ‘‘not . . . restrict the [state] Supreme

Court’s consideration of the problems involved and the issues

as the Supreme Court perceives them to be in its analysis of the

record certified . . ., [including] the Supreme Court’s restate-

ment of the issue or issues and the manner in which the answers

are to be given, whether as a comprehensive whole or in subor-

dinate or even contingent parts’’) (emphasis supplied); St. Pau/

Fire & Marine Ins. Co. v. Caguas Federal Savings & Loan Ass’n

of Puerto Rico, 825 F.2d 536, 537 (1st Cir. 1986) (welcoming

the advice of the answering court ‘‘on any other question of

Puerto Rican law material to this case on which it would like to

comment’’).

In order to understand the reaction of the Supreme Judicial

Court, it is helpful to describe the difficulty of the free expres-

sion issues involved, and the uncommon relation of the MCRA

to those issues.

A. A Conflict of Rights

The MCRA is an unusual statute, a civil rights law that abol-

ishes the state action requirement for constitutional claims of

deprivation of rights. This is not difficult to understand in the

context of racial discrimination, the prohibition of which was

the statute’s primary object. Redgrave, 399 Mass. at 105.

There, it makes sense to treat private individuals similarly to the

state, just as Title VII is designed as a ‘‘private’’ analogue to the

non-discrimination provisions of the Constitution. But where

29a

the issue is the plaintiff's ‘‘right’’ to free speech, the analogy is

strained. ° Such a right traditionally has content only in relation

to state action—the state must be neutral as to all expression,

and must not unreasonably restrain speech or expression. The

right is to be free of state regulation, so that all private speech is

formally on equal footing as a legal matter. In the traditional

context, this means that various private actors can, without

state interference, battle it out in the marketplace of ideas.

In the present case, this application of the statute is made

doubly unusual because, unlike in the typical discrimination

case, there are free speech interests on the defendant’s side of

the balance as well. The plaintiff's statutory ‘‘free speech”’

right against the defendant is to be measured against the defen-

dant’s constitutional right against the state. If it were to enforce

the statute, the state would be entering the marketplace of ideas

in order to restrict speech that may have the effect of ‘‘coerc-

ing’’ other speech.

We have grave concerns about the implications of such a con-

flict. If constitutional protections are effectively to protect pri-

vate expression, they must do so, to some extent, even when the

expression (or lack thereof) of one private person threatens to

interfere with the expression of another. To permit a newspa-

per, for example, wide freedom to pick and choose what to

print, freedom to turn down some who would write letters or

columns with which a particular newspaper (or its readers) dis-

agrees, is to permit the newspaper to deprive certain speakers of

an audience (perhaps deliberately, perhaps for ‘‘speech-

content-related’’ reasons) or to intimidate the expression of

other voices outside the newspaper. But, for the government to

guarantee even some of those speakers a ‘‘newspaper’’ plat-

form (or guarantee that they will not be coerced by what the

newspaper decides to write or not to write) itself risks interfer-

16 Cf. Carpenters v. Scott, 463 U.S. 825, 831-833 (1983) (there can be

no private conspiracy to violate First Amendment rights under 42 U.S.C.

§ 1985(3) Without state action because that right ‘‘is by definition a right

only against state interference’).

Oe

EEE

30a

ing with the newspaper’s editorial freedom. The freedom of-

mediating institutions, newspapers, universities, political asso-

ciations, and artistic organizations and individuals themselves

to pick and choose among ideas, to winnow, to criticize, to

investigate, to elaborate, to protest, to support, to boycott, and

even to reject is essential if ‘‘free speech’’ is to prove meaning-

ful. The courts, noting that free speech guarantees protect citi-

zens against governmental restraints upon expression, have

hesitated to permit governments to referee disputes between

speakers lest such mediation, even when it flies the banner of

‘*protecting speech,’’ interfere with the very type of interest it

seeks to protect."

17 Of course, a defendant’s freedom of expression interests can also be

implicated in a traditional race or sex discrimination case under the MCRA.

We do not think it at all obvious, as do our dissenting brethren, that liability

should attach if a performing group replaces a black performer with a white

performer (or vice versa) in order to further its expressive interests. Unlike

the case in Palmore v. Sidoti, 466 U.S. 429 (1984), cited by the dissent, there

would in this case be a conflict of protected interests. This presents serious

constitutional and statutory questions that we do not pretend to survey here.

We do note, however, that the Supreme Court recently has reaffirmed the

principle that discrimination might in certain circumstances be justified in

order to preserve expressive integrity. New York State Club Ass’n, Inc. v.

City of New York, 108 S. Ct. 2225, 2234 (1988) (“‘It is conceivable, of

course, that an association might be able to show that it is organized for spe-

cific expressive purposes and that it will not be able to advocate its desired

viewpoints nearly as effectively if it cannot confine its membership to those

who share the same sex, for example, or the same religion.’’). See also id. at

2237 (O’Connor, J., concurring) (‘‘there may well be organizations whose

expressive purposes would be substantially undermined if they were unable to

confine their membership to those of the same sex, race, religion, or ethnic

background’’); Roberts v. United States Jaycees, 468 U.S. 609, 627 (1984)

(‘‘Itis. . . arguable that, insofar as the Jaycees is organized to promote the

views of young men whatever those views happen to be, admission of women

. . will change the message communicated by the group’s speech because

of the gender-based assumptions of the audience.’’) (emphasis supplied); id.

at 633-36 (O’Connor, J., concurring in part) (‘‘Protection of the associa-

tion’s right to define its membership derives from the recognition that the

formation of an expressive association is the creation of a voice, and the

selection of members is the definition of that voice. . . . [W]hen an associa-

tion is predominantly engaged in protected expression . . . state regulation

of its membership will necessarily affect, change, dilute, or silence one collec-

tive voice that would otherwise be heard.’’). _

’

3la

We digress briefly to note that we disagree fundamentally

with our dissenting colleagues, analysis of the constitutional

questions implicated in this case. The BSO does not demand, as

our dissenting colleagues claim, the constitutional right to per-

form without audience interruption, or an absolute right

against any infringement of its artistic expression. Of course

there are no such rights. The BSO merely alleges a constitu-

tional right not to be penalized" for failing to perform an artis-

tic work where the BSO believes that its expression will be

compromised or ineffective. That the reason for its desire to

cancel may be the potential for audience disruption does not

mean that the decision should be immune from constitutional

solicitude.'? The BSO asserts, simply, a right to be free from

compelled expression.

Finally, we note that, even if an artistic organization could not discrimi-

nate in favor of a white (or black, or male) performer, presumably it would

have a much more compelling interest in cancelling the performance rather

than acceding to the casting requirements imposed by the state, even if the

reason for cancellation is fear of community reaction. Of course, we here

simply point out some of the difficulties that arise when two important pro-

tected interests conflict—where there is a clash of rights. We express no view

as to how, in particular cases, that clash might be resolved.

18 For constitutional purposes, it makes no difference whether the state

seeks to compel expression directly by ‘‘forcing’’ the artist to perform, or by

imposing civil liability for refusing to perform; either form of coercion is

burdensome to rights of free expression.

19 There are numerous ways in which adverse performance conditions

may disturb that synergistic interplay of performers and audience that is so

important to the content of the performance. Of course the importance of

conditions is not a constant; it will vary with the medium (music, dance,

drama), the setting (Circle in the Square, Symphony Hall, Shea Stadium),

the audience (young children, rock fans, opera lovers) and the performers

(Barnum & Bailey, the Beastie Boys, the Bolshoi Ballet). Some performers

and audiences may be able to ignore adverse conditions; others may welcome

the challenge of working around or with those conditions; still others may

find adverse conditions intolerable—there is a long tradition of performers

stalking offstage when an audience is not to their liking. But there can be no

doubt that performance conditions may sometimes be vitally important to

the overall impact of a performance, to the point where, it makes little sense

to speak separately of the performance’s content. Visual or aural disruption

32a

It is clear that artistic expression in the performing arts

enjoys substantial constitutional protection. Schad v. Borough

of Mount Ephraim, 452 U.S. 61, 65-66 (1981). Protection for

free expression in the arts should be particularly strong when

asserted against a state effort to compel expression, for then the

law’s typical reluctance to force private citizens to act, cf., e.g.,

Luriley v. Wagner, 42 Eng. Rep. 687, 693 (Ch. 1852), augments

its constitutionally based concern for the integrity of the artist.

A distinguished line of cases has underscored a private party’s

right to refuse compelled expression. West Virginia State Bd. of

Educ. v. Barnette, 319 U.S. 624 (1943) (invalidating a compul-

sory flag salute statute); Miami Heraid Publishing Co. v.

Tornillo, 418 U.S. 241 (1974) (invalidating a statute forcing

newspapers to print candidates’ replies to editorials, as an

impermissible burden on ‘‘editorial control and judgment’’);

Wooley v. Maynard, 430 U.S. 705 (1976) (invalidating penalty

for refusal to display ‘‘Live Free or Die’’ motto on license

plate); Pacific Gas & Elec. Co. v. Public Utilities Comm’n. 475

U.S. 1 (1986) (plurality opinion) (invalidating requirement that

utility place consumer group’s newsletter in utility’s mailings to

customers). **(T]he First Amendment guarantees ‘freedom of

speech,’ a term necessarily comprising the decision of both

what to say and what nof to say.’’ Riley v. National Federation

of the Blind of North Carolina, Inc., 108 S. Ct. 2667, 2677

(1988) (emphasis in original). We have been unable to find any

case, involving the arts or otherwise, in which a state has been

allowed to compel expression. The outcome urged by our dis-

senting colleagues would, to our knowledge, be completely

unprecedented.

Redgrave conceded at oral argument, and presumably the

dissent would not disagree, that persons picketing a Redgrave

easily can destroy the intended mood and atmosphere of a performance and

produce an impact on the audience different from that which the performer

intended to convey.

20 CY. Brown v. Louisiana 383 U.S. 131, 141-42 (1966) (plurality opin-

ion) (holding that First Amendment rights ‘‘are not confined to verbal

expression’’ but may also include ‘“‘protest by silent and reproachful presence

Ry

33a

performance would have a free expression defense to MCRA

liability. This principle logically would extend as well to persons

boycotting Redgrave performances. These are activities that are

intended to coerce the exercise of others’ speech by means of

public approbation and economic pressure. Indeed, that is their

animating purpose. Yet they are protected, for the simple rea-

son that we have always tolerated and encouraged private

expression, rather than state compulsion, as the antidote to pri-

vate speech with which we disagree. We see no reason why /ess

protection should be provided where the artist refuses to per-

form; indeed, silence traditionally has been more sacrosanct

than affirmative expression. The BSO argues that it desired

simply to protect its own artistic expression, and it chose cancel-

lation as the means of doing so. That this may have had a resid-

ual effect of coercing Redgrave’s exercise of her speech should

not mean that the cancellation is any less protected than expres-

sion intended to coerce such exercise.

We raise these points not to resolve the constitutional ques-

tions, but to point out how difficult those questions are to

resolve, to indicate that expression-related interests appear on

all sides, and to suggest that the dissent’s resolution, while

motivated by values we share, too easily reduces a very complex

clash of rights to a simple equation that neglects the serious

weight of the BSO’s interests.”

We have no reason to think that the Massachusetts Legisla-

ture enacted the MCRA in an attempt to have its courts, at the

insistence of private plaintiffs, oversee the editorial judgments

of newspapers, the speech-related activities of private universi-

ties, or the aesthetic judgments of artists. To be more specific,

21 The implications of the dissent’s position underscore its problems.

For instance, under the dissent’s theory of the MCRA, a private university

would be liable for denying tenure to a professor whose views it found politi-

cally reprehensible, or to a scholar who might cause turmoil on campus. A

newspaper could not, without running afoul of the statute, cancel an opinion

writer’s column in response to outrage in the community, even if it meant

that the newspaper's reputation was impugned or that great numbers of peo-

ple stopped reading the paper. While we may commend those institutions

and artists that resist such public pressure, no court has, to our knowledge,

ever held legally accountable those private groups or artists that do succumb

to public taste.

34a

our examination of these difficulties helps us understand why at

least four, and perhaps as many as seven, members of the

Supreme Judicial Court wrote opinions indicating that the stat-

ute does not impose liability upon the BSO in the circumstances

of this case.

We therefore present the responses of the Supreme Judicial

Court.

B. The Responses of the Supreme Judicial Court

1. The Plurality

Chief Justice Hennessey was sufficiently concerned by ‘‘some

serious issues which are not addressed in the questions but

which are suggested by the record of the case’’ that he discussed

these issues even before answering our questions. 399 Mass. at

97, 502 N.E.2d at 1377. The Chief Justice wrote:

It can be inferred from the record that the BSO was

itself a victim of violations of G.L. c. 12, § 11H, by those

persons who put pressure on the BSO to cancel the Red-

grave participation. From the premise that the BSO had

the free speech right to perform or not as it saw fit, it can

be argued that the BSO’s secured rights were interfered

with, and that it was not within the legislative intent that

anyone should be punished under c. 12 for exercising the

constitutional right not to speak (i.e., perform). It can also

be argued that when a private person decides not to speak

and has no duty to do so, it would be unconstitutional to

require that person to speak or, contractual obligations

aside, to punish him civilly for not speaking.

The foregoing arguments can be focused on both of the

certified questions. It can be offered that a person exercis-

ing constitutional rights who interferes with another’s con-

stitutional rights is not (Question 1) ‘‘interfering with the

rights of another person by ‘threats, intimidation, or coer-

cion,’ ’’ within the meaning of G.L. c. 12, §§ 11H and

111. It can be further offered by way of defense to an

action under §§ 11H and 11] (Question 2) that the defen-

dant was motivated by the ‘‘additional concern [ ]’’ of the

35a

artistic integrity of its production; that this motivation is

within the defendant’s free speech rights; and that this

independent motivation, if established, is a complete

defense to the action where it is also shown that the defen-

dant had no personal wish either to punish the plaintiff or

to intrude upon the plaintiff’s rights.

We have not considered any of the above arguments or

issues in answering the two certified questions. We treat

the questions as addressed to a typical action under the

Massachusetts Civil Rights Act, which does not concern a

defendant who is exercising a free speech or other constitu-

tional right in interfering with the secured rights of

another. In short, we answer the two questions as they are

worded.

399 Mass. at 97, 502 N.E. 2d at 1377.

Although the Chief Justice was careful to frame most of the

above observations as ‘‘offerings’’ or arguments, and to disre-

gard these matters in supplying yes-or-no answers to the ques-

tions in the form we had posed them, we do not read his

comments as mere speculation. On the contrary, the Chief Jus-

tice made plain that there might be no MCRA liability where a

defendant is exercising its ‘‘free speech right’’ not to speak or

perform. Either such liability would not be within the realm of

behavior that the legislature intended to prohibit, or a constitu-

tional defense might be offered to deny liability. The Chief Jus-

tice’s opinion did not speak to the source of the constitutional

defense, referring only to constitutional ‘‘free speech rights.’’

2. The Concurrence

The concurring Justices expressed a similar view in even more

assertive terms. Justice Wilkins, joined by Justice Abrams,

began his concurring opinion by noting that our questions were

not ‘‘clear and unequivocal’’ but involved ‘‘substantial consti-

tutional questions.’’ 399 Mass. at 101, 502 N.E. 2d at 1380. He

observed:

Because the BSO’s constitutional right to free speech

under art. 16 of the Massachusetts Declaration of Rights is

36a

present in this case, it may seem surprising to some that no

question has been asked of us concerning the BSO’s State

constitutional right to determine not to perform ‘‘Oedipus

Rex.”’ Perhaps the Court of Appeals has already con-

cluded that, if the nonconstitutional grounds indicated by

its questions are not dispositive of Redgrave’s claim, First

Amendment considerations will be and that, therefore, it

need not ask us about analogous State constitutional con-

siderations.

I have been unable to think of any theory under which,

in the circumstances, statutory liability may properly be

imposed on the BSO in the face of its State constitutional

right to determine what artistic performances it will or will

not perform. Redgrave’s constitutional rights” are no

greater than those of the BSO, and there was no way in

which the interests of each could be accommodated.

399 Mass. at 102, 502 N.E. 2d at 1380. Justices Wilkins and

Abrams thus unequivocally expressed their view that article 16

of the Massachusetts Declaration of Rights creates a right not

to speak or perform and thus bars MCRA liability in this case.

3. The Dissent

Finally, Justice O’Connor, joined in dissent by Justice

Lynch, delved into the legislative history of the MCRA and

found that, “‘beyond reasonable question,’’ it was enacted in

1979 ‘‘in response to a concern about the inadequacy of then

current law to deal generally with discrimination against minor-

ity groups, and more specifically, to deal with racial violence.’’

399 Mass. at 105, 502 N.E.2d at 1382. The dissenters concluded

that “‘[r]acial discrimination and violence involve conduct that

is specifically designed to interfere with secured rights, and it is

22 We must interpret this reference to mean Redgrave’s free speech

right, emanating from the state constitution, but ‘‘secured ‘“‘by the MCRA

against private interference. The BSO’s free speech right under the state

constitution—that is, the right to speak, or not to speak, free of governmen-

tal interference—would, of course, outweigh Redgrave’s merely statutory

right under the MCRA, and would in Justice Wilkins’ view bar the state

from imposing MCRA liability.

37a

that kind of conduct that the Legislature made the basis of civil

liability.”’ Jd. They flatly asserted that the MCRA ‘“‘is properly

interpreted to provide for liability only when the defendant

interferes with a plaintiff’s secured rights with the specific

intent to do so.’’ 399 Mass. at 106, 502 N.E. 2d at 1382. There-

fore, they concluded, unintentional interference with secured

rights would not constitute interference by ‘‘threats, intimida-

tion or coercion,’’ as required by the statute. This abstract con-

clusion was rejected by the other five justices.

As an alternative ground for rejecting Redgrave’s claim, the

dissenters, in the last paragraph of their opinion, identified

another reason why liability was inappropriate in this case even

assuming that no specific intent to coerce was required under

the statute. Cancellation of the performance, the dissenters

explained, ‘‘may have conveyed a message to Redgrave that in

the future other performances may be cancelled, but the con-

veyance of that message did not amount to threat or intimida-

tion unless it suggested that the BSO itself intended to take

future harmful action against her.’’ 399 Mass. at 110, 502 N.E.

2d at 1385. The dissenters concluded that ‘‘[mJere cancellation

of the performances would not appear to convey the message

that the BSO intended to take any future action.’’ Jd. Thus,

there would be no threat or intimidation. This statutory con-

struction, as applied to the facts of this case, was not addressed

by any of the other justices, and there is no indication that any

of them would have disputed the conclusion that liability could

not attach in this case.

In reaching their conclusions, the dissenting Justices specifi-

cally noted that their statutory interpretation was based not

only on legislative history and logic, but also was motivated

‘“*by another consideration.’’ Justice O’Connor agreed that the

plurality’s answers to our ertified questions implicated

serious constitutional questions stemming from the BSO’s

constitutional right not to speak (i.e., perform), and not to

be civilly liable for not speaking. Those constitutional

questions are reduced or altogether removed by construing

38a

§ 11] as imposing liability only on a defendant who specif-

ically intends to interfere with another’s secured rights.

399 Mass. at 106, 502 N.E.2d at 1382. Justice O’Connor rea-

soned that ‘‘ ‘It is our duty to construe statutes so as to avoid

. . constitutional difficulties, if reasonable principles of inter-

pretation permit.’ ’’ Jd. (quoting Langone v. Secretary of the

Commonwealth, 388 Mass. 185, 190, 446 N.E.2d 43 (1983)

(quoting in turn School Comm. of Greenfield v. Greenfield

Educ. Ass’n 385 Mass. 70, 79, 431 N.E.2d 180 (1982))). In

accordance with this principle, and keeping in mind that the

BSO may have intended ‘‘only to exercise its constitutional

right not to present an inartistic performance,’’ 385 Mass. at

103, 502 N.E. 2d at 1381, the dissenters construed the statute to

preclude liability in the situation presented by this case.

C. Making Sense of the Supreme Judicial Court’s Opinions

-Fhere are-at least four votes on the SJC denying liability on

state law grounds. The concurring justices would establish a

state constitutional defense, and the dissenters would interpret

the statute, in light of constitutional concerns, to prohibit liabil-

ity in the first instance. These two grounds are separate and not

inconsistent. Because a majority of the SJC would foreclose lia-

bility on state law grounds, it is unnecessary and improper for

us to reach the federal constitutional issues.

-- We are, moreover, confident that the entire SJC would, if

explicitly asked to decide the issue, concur with the finding of

no liability on both state law grounds. First, we think that there

would be unanimity on the dissenters’ theory that the statute

does not in the first instance impose liability for refusing to per-

form. The dissent explicitly held so on two separate grounds.

One of those grounds was rejected by the rest of the court as a

general holding, but not as it related to these specific facts.

Indeed, the other justices rejected the dissent’s view of ‘‘coer-

cion’’ only on the abstract assumption that constitutional con-

cerns were not implicated in a particular case; that is, they

established third-party pressure as a source of coercion and thus

liability in a typical MCRA case, without reaching the novel

issues of statutory construction presented by the instant facts.

39a

And none of the other justices rejected the dissent’s alternative

statutory interpretation in the final paragraph, which related

specifically to the facts of this case.

It is not mere speculation to presume that the justices in the

plurality also would deny liability on the facts of this case. In

fact, the plurality opinion suggested that the statute could be

construed, in light of constitutional concerns, to deny liability

for cancellation of an artistic performance. On such a difficult

question of statutory construction, regarding a fact situation

far removed from the prototype envisioned by the legislature

and implicating a plaintiff's free speech rather than equal pro-

tection rights, we think it clear that the plurality (and the con-

curring justices, for that matter) would interpret the statute so

as to find that cancellation of a performance could not be the

basis for MCRA liability.

Such a conclusion follows directly from the longstanding

principle of statutory construction that ‘‘ ‘[a] statute must be

construed, if fairly possible, so as to avoid not only the conclu-

sion that it is unconstitutional but also grave doubts upon that

score.’ ’’ Loriol v. Keene, 343 Mass. 358, 363 (1961) (quoting

United States v. Jim Fuey Moy, 241 U.S. 394, 401 (1916))

(emphasis supplied). See also Frisby v. Schultz, 108 S. Ct. 2495,

2501 (1988) (‘‘well-established principle that statutes will be

interpreted to avoid constitutional difficulties’’). This principle

has for many years been a paramount tenet of Massachusetts

statutory construction. See, e.g., Spence v. Gormley, 387 Mass.

258, 264 (1982); Baird v. Attorney General, 371 Mass. 741, 745

(1977); Board of Appeals of Hanover v. Housing Appeals

Comm., 363 Mass. 339, 364 (1973); Opinions of the Justices to

the Governor, 361 Mass. 897, 901 (1972); Worchester Cnty.

Nat’! Bank v. Commissioner of Banks, 340 Mass. 695, 701

(1960); Ferguson v. Commissioner of Corporations and Taxa-

tion, 316 Mass. 318, 322-24 (1944); Kennedy v. Commissioner

of Corporations and Taxation, 256 Mass. 426, 430 (1926). The

SJC has ‘‘traditionally . . . regarded the presence of a serious

constitutional question under one interpretation of a statute to

be a strong indication that a different possible interpretation of

that statute should be adopted, if the constitutional issue can be

avoided thereby.*’ Baird, 371 Mass. at 745. Even where the SJC

40a

is unpersuaded that constitutional infirmities are implicated, it

**prefer[s] to read the statute in a way that will avoid constitu-

tional doubts.’” Spence, 387 Mass. at 264. In light of this unas-

sailable rule of statutory construction, we are certain that the

remainder of the SJC would agree with the dissenters that the

MCRA, when construed in light of constitutional consider-

ations, does not impose liability for a refusal to perform an

artistic work.

it is clear that all of the justices had at the very least grave

doubts about the constitutionality of imposing MCRA liability

on the BSO in this case. Without seeing any indication that a

single justice would otherwise have construed the statute in this

case, we conclude that at least a majority would follow the tra-

ditional presumption and construe the statute so as not to impli-

cate the constitutional right, recognized by them all, to refuse to

proceed with an artistic performance.

We are equally confident that a majority, if not all, of the

justices, would agree with the concurrence that a state constitu-

tional defense also bars liability. It cannot seriously be con-

tended that the dissenting justices, who were willing explicitly to

construe the statute so as to preclude liability, would not join in

the concurrence’s reasoning. Similarly, the plurality took great

pains to acknowledge the possibility of a constitutional defense.

While neither the dissent nor the plurality distinguished

between possible state and federal sources, they declared the

existence of the right to refrain from performing with such cer-

tainty that, were we to hold that the First Amendment created

no such right, we are confident that they would find such a right

in article 16 of the Massachusetts Declaration of Rights.

D. The State Law Basis for the SJC’s Opinions

We think it is clear that the grounds relied upon by the con-

currence and the dissent (each of which, we believe, would be

adopted by a majority of the court), do in fact arise from con-

sideration of state, rather than federal, law. The dissenting jus-

tices’ view is that the statute does not contemplate liability

under the facts of this case. The dissenters concluded, based on

at least two separate theories, that cancellation of a perform-

Bue...

4la

ance could not constitute ‘‘interfere[nce] by threats, intimida-

tion or coercion’’ of Redgrave’s exercise of her ‘‘right’’ to

speak freely. This follows from the responsibility to construe

Massachusetts statutes so as to avoid possible constitutional

doubts.

We next examine the concurring justices’ alternative state law

theory for denying liability—a state constitutional defense. We

think that our dissenting brethren are mistaken when they assert

that ‘‘[a]ny decision by the SJC that the BSO has a state consti-

tutional defense to MCRA liability is virtually the same as, and

indistinguishable from, a ruling that the BSO has a federal con-

stitutional defense.’’ Infra at 76. We note that Justice Wilkins is

himself the author of a careful and scholarly study of the rela-

tionship between federal constitutional provisions and parallel

provisions of the Massachusetts constitution. See Wilkins,

Judicial Treatment of the Massachusetts Declaration of Rights

in Relation to Cognate Provisions of the United States Consti-

tution, 14 Suffolk U.L. Rev. 887 (1980). In that article he dis-

cusses in detail the Supreme Judicial Court’s past treatment of

article 16 and the future prospects for construing article 16 as

divergent from the First Amendment. See id. at 897-906. In

addition, the SJC has itself found it appropriate in certain cir-

cumstances to read article 16 to provide greater protection for

freedom of artistic expression than does the First Amendment.

See Commonwealth v. Sees, 374 Mass. 532, 536-38, 373 N.E.2d

1151, 1155-56 (1978) (finding protection under article 16 for

semi-nude dancing that is not protected by the First

Amendment—compare Doran v. Salem Inn, Inc., 422 U.S.

922, 932-33 (1975)). Accord Cabaret Enterprises, Inc. v . Alco-

holic Beverages Control Comm’n, 393 Mass. 13, 468 N.E.2d

612 (1984) (nude dancing). See also Commonwealth v. Upton,

394 Mass. 363, 372, 476 N.E.2d 548, 555 (1985) (reaffirming

Sees, and, noting that ‘‘[t]he Constitution of the Common-

wealth preceded and is independent of the Constitution of the

United States,’’ listing numerous cases where the two constitu-

tions have been read to diverge). We do not take lightly Justice

Wilkins’s express reliance on the existence of a state, as

opposed to federal, constitutional right. We read his concur-

42a

rence as a measured and meaningful conclusion that there is

such a state constitutional right.

Nor does Michigan v. Long, 463 U.S. 1032 (1983), compel us

to treat the SJC’s constitutional views as reflecting exclusively,

or primarily, federal constitutional law. Michigan v. Long

addressed the prototypical case where a state court cites a mix

of federal and state cases as authority for a ‘‘constitutional”’

holding. In that sort of case, the Supreme Court, on direct

review of the federal questions, is legitimately concerned about

the precedential impact of ambiguity on federal decisional! law;

the Michigan v. Long rule is devised to prevent unnecessary ero-

sion of federal constitutional law through opaque state court

rulings. But in the case before us, we defer to a state court's

interpretation of state constitutional law on certification in a

diversity case.

We think it clear that the concurrence did rely on ‘‘adequate

and independent state grounds,’’ and we are confident that at

least a majority of the SJC would join that position. The “‘plain

statement’’ rule in Michigan, quoted at length by the dissent,

makes it clear that federal review of such a decision would be

inappropriate. The dissent quotes, but fails to emphasize, the

Supreme Court’s ruling that the state ruling is presumed to be

based on federal law when that decision ‘‘fairly appears to rest

primarily on federal law, or to be interwoven with the federal!

law... .’’ 463 U.S. at 1040. This prerequisite is not met here.

Similarly in the next passage quoted by the dissent: there is fed-

eral jurisdiction to hear the federal claim ‘“‘when it fairly

appears that the state court rested its decision primarily on fed-

eral law.’’ Jd. at 1042. There is, of course, no appearance at all

here that the concurrence or either of the other opinions from

the SJC was referring to federal law when speaking about the

BSO’s constitutional right not to perform, and the concurrence

explicitly makes reference to state constitutional law as the ade-

quate and independent ground for denying liability.

It is not surprising that the various SJC opinions do not cite

federal cases, not only because those opinions were tendered in

response to questions about state law, but also because there are

not any federal cases directly, or even closely, on point in sucha

strange fact situation and with such an unusual state statute. It

43a

cannot plausibly be argued that the SJC’s opinions say anything

at all about federal law. The concerns of Michigan v. Long

therefore are not implicated here.”

E. Conclusion

In these circumstances, and especially in view of our obliga-

tion to avoid the unnecessary decision of federal constitutional

questions, we see no need to discuss the existence or content of

a First Amendment right not to perform an artistic endeavor.

In sum, we decline to reach the federal constitutional issues

not only to avoid the unnecessary resolution of very difficult

and novel questions of constitutional law, but also to avoid an

unnecessary disputation with a state court over the reach and

intendment of a state statute. There are at least four, and as

many as seven, votes on the SJC for denying MCRA liability

for refusing to perform an artistic work. The four votes are

based on separate yet not inconsistent interpretations of state

law, even if federal constitutional concerns might animate those

state law constructions. We are confident that each of the two

state law theories would be accepted by a majority, if not all, of

the court, because of the necessity of construing state statutes

so as to avoid constitutional doubts. But even if the entire court

was not so inclined, a majority has already declared that liabil-

ity should not be imposed under state law.

Accordingly, we hold, in light of our understanding of state

law, that the district court correctly entered judgment for the

BSO on Redgrave’s MCRA claim.

The judgment on the MCRA claim is affirmed and the judg-

ment on the contract claim is vacated and remanded for entry

23. Of course, Michigan v. Long does not in any way affect our decision

to defer to the SJC’s implicit interpretation of the statute itself, in light of

constitutional doubts, to foreclose liability in the first instance. See supra, at

$4-56. In so doing, we are respecting a state court's discernible reading of its

own statute influenced by constitutional concerns. That these concerns might

be regarding federa/ constitutional issues does not change the fact that the

state court's decision is, exclusively, one of state statutory construction; there

is no suggestion that any view about federal law is being decided.

44a

of judgment for consequential damages to the extent approved

herein. No costs.

>

BOWNES, Circuit Judge, with whom Circuit Judge SELYA

joins, concurring in part and dissenting in part. Although I con-

cur wholeheartedly in part II of the majority opinion concern-

ing Redgrave’s consequential contract damages claim, I cannot

agree with the majority’s treatment of Redgrave’s claim under

the Massachusetts Civil Rights Act (MCRA). Accordingly, I

write separately.

In framing the terms of my disagreement, it is important to

emphasize what the majority actually holds when it rebukes

Redgrave’s MCRA claim. The majority’s opinion is not based

on a federal constitutional defense to application of the MCRA

against BSO. Notwithstanding that it spends eight pages discus-

sing federal constitutional issues raised by the MCRA, supra at

41-48, the majority opinion—paradoxically—goes on to add

that ‘‘we see no need to discuss the existence or content of a

First Amendment right’’ for the BSO. Supra at 61. Rather, the

majority purports to rest its decision solely on principles of

Massachusetts state law gleaned from the answers to the two

questions we certified to the Supreme Judicial Court (SJC). The

result of this approach is that the majority allows a state court

to bar Redgrave from recovering on essentially first amendment

grounds without any independent review by a federal court.

The majority’s reading of the SJC’s opinions is ill-founded

and wholly unconvincing. It ignores the clear and unequivocal

answers to the two questions certified to the SJC, relying

instead on dicta in the SJC plurality opinion, it unduly empha-

sizes the concurring opinion by two justices, and it engrafts

onto the plurality and concurring opinions selected statements

from the dissent. Then, to hold this pastiche together, it over-

rules, on the basis of a law review article by one of the associate

justices of the SJC, well-established Massachusetts law holding

that, as far as freedom of speech is concerned, state and federal

rights are coextensive. \Not only has the majority ignored the

dictates of Michigan v. Long, 463 U.S. 1032 (1983), it has

rewritten Massachusetts law. This is comity run amok.

ih

45a

I. THE OPINIONS OF THE SUPREME JUDICIAL COURT

Unlike the majority, I do not believe that state law provides a

basis for ducking the important and difficult federal constitu-

tional issues raised by this case. Before turning to those issues,

however, it is necessary first to examine what the SJC wrote in

its answers to the questions certified by this court and how these

answers ought to be interpreted in light of state and federal law.

My discussion of the SJC’s opinions is divided into two parts.

The first part reviews what the SJC actually said about the

scope of the MCRA and the second part applies a common

sense approach concerning the import of possible defenses

under the Declaration of Rights of the Massachusetts Constitu-

tion.

A. What the Supreme Judicial Court Said

Because this case involves certified questions, I begin by

reviewing the answers supplied by the SJC. I first point out that

with respect to the answers as opposed to any dicta, there is no

need to distinguish between the plurality opinion on behalf of

three justices and the concurrence on behalf of two: the two

concurring justices specifically joined ‘‘in the answers given to

the questions as the Chief Justice’s [plurality] opinion has con-

strued them.’’ Redgrave v. Boston Symphony Orchestra, 399

Mass. 93, 101, 502 N.E.2d 1375, 1380 (1987) (Wilkins, J., con-

curring). A clear majority (five justices) of the SJC thus has

agreed to a single answer to each of the certified questions.

Each answer was favorable to the claims of Redgrave. They

may be summarized as follows.

First, a defendant may be held liable under the MCRA even if

the defendant did not desire to interfere with the rights of

another, but merely acquiesced to third-party pressure. See 399

Mass. at 98-100, 502 N.E.2d at 1378-79. Second, it is no defense

to an action under the MCRA that the defendant’s actions were

motivated independently by concerns for economic loss or

physical safety, absent explicit and imminent danger of physical

harm. See 399 Mass. at 100-101, 502 N.E.2d at 1379-80. The

logical result of these answers, seemingly lost in the majority

46a

opinion, is that the MCRA wes intended to reach precisely the

conduct of the BSO in this case. The only statutory defenses

offered by the BSO—that it merely acquiesced to third-party

pressure and acted out of an independent concern for economic

loss and physical safety—were soundly rejected.”

The three justices in the plurality and the two concurring jus-

tices were not, however, in complete agreement, as evidenced

by their separate opinions. Their disagreement lay in a possible

state constitutional defense for the BSO, a question which is

implicitly raised by the facts of this case, but which was never

certified to the SJC. The three justices in the plurality con-

cluded that the constitutional issue was not before them and

limited their answers to ‘“‘the two questions as they are

worded."’ 399 Mass. at 97, 502 N.E.2d at 1377. They specifi-

cally stated that they were ‘‘express[ing] no opinion’’ on such

issues as a free speech defense for the BSO. /d. In contrast, the

two concurring justices found that BSO’s free speech rights

were inseparably involved in the case and thus did reach the

question of state constitutional defenses. For himself and Jus-

tice Abrams, Justice Wilkins wrote: ‘‘] have been unable to

think of any theory under which, in the circumstances, statu-

tory liability may properly be imposed on the BSO in the face of

its State constitutional right to determine what artistic perform-

ances it will or will not perform.*’ 399 Mass. at 102, 502 N.E.2d

at 1380.

The two dissenting justices differed fundamentally from both

the plurality and concurring justices on the question of how to

interpret the MCRA. The dissenters argued that the statute

must be understood to require a showing of specific intent,

applying only to persons who specifically intend to interfere

with secured rights of another. 399 Mass. at 102-09, 502 N.E.2d

at 1380-84. Like the plurality, the dissenters did not decide

whether the BSO has any state constitutional defense to the

MCRA, although the dissent did use the possibility of some

24 The majority stresses another possible statutory defense which it

borrows from dicta in the SJC dissent. This argument was not, however, put

forward by any party to this case and must be rejected at any rate for the rea-

sons set forth infra at 73-74.

47a

**‘constitutional’’ problems—not specifying the federal or state

Constitution as the source for such problems—as support for

its interpretation of the statute. Invoking the familiar maxim of

statutory construction, the dissent argued that the MCRA

should be interpreted to require specific intent so as to avoid

*“*serious constitutional questions’ that would otherwise arise.

399 Mass. at 106, 502 N.E.2d at 1382.

A plain reading of the SJC’s opinions reveals two things.

First, a majority of five justices has rejected the statutory

defenses offered by the BSO. Two justices dissented on this

point, but we are, of course, bound to accept the conclusions of

the majority and assume that the BSO’s statutory defenses to

the MCRA are not valid. Second, the two concurring justices

reached the question of whether the BSO has any constitutional

defense. They found that it did, under the state Constitution.

However, a majority of five justices—the plurality of three plus

the two dissenting justices—expressly declined to decide the

constitutional question. This court is, therefore, left without

definitive guidance from the SJC on that issue and must, |

believe, decide both the state and federal constitutional ques-

tions in order to resolve fully the issues presented by this case.

The majority of this court obviously views the situation quite

differently. It has put forth what are apparently three separate

reasons for evading the constitutional questions and ‘‘defer-

ring’’ to the views of the SJC on ostensibly state law grounds.

Each argument is without merit. | address them individually.

First, by aggregating the views of the two dissenting and two

concurring justices, the majority suggests that ‘‘[t]here are at

least four votes on the SJC denying liability on state law

grounds,’’ making it “‘unnecessary and improper for us to

reach the constitutional issues.’’ Supra at 54. It is true that four

members of the SJC would not have held the BSO liable under

the MCRA. The two dissenters found that the MCRA did not

extend liability absent specific intent to interfere with secured

rights, and the two concurring justices found a state constitu-

tional defense. Therefore, had this exact case arisen in the Mas-

sachusetts state courts and proceeded in its present form to the

SJC, the BSO would not have been subjected to liability, by vir-

tue of the somewhat unusual combined effect of two minority

48a

positions. But that possibility is simply irrelevant to the issues

here, because this case did not arise in the state courts, it arose

in the federal courts. As a federal court sitting in a diversity

case, Our task is to apply the substantive law of Massachusetts

on any given state law question, not to predict what quirky

result might obtain in the state courts because a particular case

contains multiple state law issues, each of which attracts a

minority as well as a majority position.

The central state law issues in this case are the two questions

of statutory interpretation we certified to the SJC. On those

questions, we have received clear answers from a majority of

five justices. That two justices disagreed with the majority’s

analysis should have no bearing on our handling of this case,

for their view, however interesting it may be, failed to carry the

day in the SJC. Certainly we have no business combining the

two dissenting votes with the votes of the two concurring jus-

tices, who based their position on entirely different grounds and

indeed explicitly rejected the dissent’s analysis. In its eagerness

to ‘‘defer’’ to the SJC, the majority of this court has confused

the procedure of certifying questions of state law to a state

____court with the procedure of certifying entire cases to state

courts. Federal courts do not certify cases to state courts. They

certify questions of law and then apply the answers to those

questions to reach a result which represents the combined effect

of majority, not minority, positions.”

The second reason offered by the majority for ducking the

federal issues in this case is its ‘‘confiden[ce] that a majority, if

not all, of the justices [of the SJC], would agree with the con-

currence that a state constitutional defense also bars liability.”’

Supra at 57. One would expect such a conclusion to be based on

ES

25 General application of the majority’s head-counting approach would

produce equally inconsistent and anomalous results in other cases. In decid-

ing cases involving multiple issues of Massachusetts law, federal courts in

this circuit would be free to comb the volumes of Massachusetts Reports

until they found sufficient dissenting votes from different justices on some

combination of issues to produce a ‘‘majority.’’ Hypothesizing that the case

actually arose in state court, the federal court could then apply its con-

structed ‘‘majority’’ of dissents even though its resulting decision ran counter

to the result that would be produced if the court applied the majority posi-

tion on each issue. Such a situation obviously would be intolerable.

49a

a substantive review of SJC decisions in the free speech area.

Surprisingly, however, the majority bases its ‘‘confidence’’

solely a reading of the three SJC opinions in this case, only one

of which (the concurring opinion) even purported to reach the

issue of the state Constitution. It is, therefore, necessary to

review the SJC opinions in some detail in order to see how the

majority could have reached such a remarkable conclusion.

Writing for a plurality of the SJC, Chief Justice Hennessey

addressed the question of a possible constitutional defense,

which he termed ‘“‘serious issues. . . suggested by the record of

this case,’’ in prefatory remarks preceding his answer to the two

certified questions. 399 Mass. at 97, 502 N.E.2d at 1377. This

court’s majority opinion quotes liberally from these remarks,

concluding that they ‘‘declar[e] the existence of the right to

refrain from performing with. . . certainty.’’ Supra at 57. I

cannot agree.

To begin with, although the majority extensively quotes and

discusses the plurality’s ‘‘serious issues’’ remarks, it inexplica-

bly omits the crucial paragraph with which these remarks are

introduced and which places them in proper perspective: ‘‘We

answer the two certified questions in accordance with their clear

and unequivocal wording. In so doing, we express no opinion

on some serious issues which are not addressed in the questions

but which are suggested by the record of the case.’’ 399 Mass. at

97, 502 N.E.2d at 1377 (emphasis added). I cannot imagine how

to read this passage, except as indicating that, although the plu-

rality felt compelled to mention some issues raised by the certi-

fied questions—including the question of a constitutional

defense—it did not wish even to state an opinion as to how

those issues might be resolved. The majority’s opinion subverts

these clear words of the Chief Justice by reading into the Chief

Justice’s opinion a view that the opinion itself expressly

declined to take.

Moreover, if the plurality’s intent not to take a position on

the question of a constitutional defense was not made clear in

its prefatory remarks, it is amply demonstrated by the language

used by the Chief Justice to discuss the ‘‘serious issues.’’ Each

remark he made, to which the court today attaches overriding

significance, is phrased as an ‘‘offering,’’ a possible ‘‘infer-

50a

ence,’’ or an ‘‘argument,’’ not as an opinion or a conclusion.

See 399 Mass. at 97, 502 N.E.2d at 1377 (“‘It can be inferred

... .([I]t cam be argued. . . . Itcan also be argued. . . . It

can be offered .... It can be further offered ... .’’)

(emphasis added). These comments are pure hypothetical con-

jecture and equivocation. They do not even rise to the level of

dicta because they are not statements of opinion regarding

issues not before the court. They are merely recitations of argu-

ments that might be made (concerning issues not before the

court), without any indication whether the justices in the plural-

ity indeed thought that the arguments were valid. The plurality

deliberately narrowed the focus of both questions, particularly

question two, by stating immediately after the remarks: ‘‘We

have not considered any of the above arguments or issues in

answering the two certified questions.’’ Jd. The justices of the

Supreme Judicial Court know how to offer an opinion, even in

dicta, when they choose to do so. This court’s attempt to ele-

vate the plurality’s comments into rulings of law binding on us

ignores its expressed intent not to issue such rulings in this case.

It is also important to note that Justice Wilkins’ decision to

reach the question of defenses under the Massachusetts Consti-

tution was the so/e reason for his filing a separate concurrence.

In every other respect, he agreed with the analysis of the plural-

ity. See 399 Mass. at 101-02, 502 N.E.2d at 1380. By suggesting

tha both the plurality and concurrence ‘‘would’’ have found a

state constitutional defense to the MCRA in this case, supra at

57, the majority of this court attempts to read out of existence

the one and only distinction between the two SJC opinions.

Notwithstanding that the five justices found sufficient disagree-

ment amongst themselves to warrant two separate opinions,

this court declares that the justices were actually in total agree-

ment concerning a constitutional defense. This dovetailing of

the plurality and concurring opinions is achieved by wresting

the justices’ words out of the context in which they were used.

As if it were not presumptuous enough to have disregarded

the stated ground for disagreement between the plurality and

concurring justices, the majority of this court goes on to create

‘‘unanimity’’ on the part of the SJC by declaring that the dis-

senters as well ‘‘would’’ have joined in the concurring justices’

Sla

finding of a state constitutional defense. Supra at 57. The dis-

sent certainly says no such thing explicitly. No constitutional

cases are cited by the dissent. Indeed, the dissent’s only refer-

ence to any constitution was its assertion that interpreting the

MCRA to require a showing of specific intent avoided ‘‘serious

constitutional questions.’ 399 Mass. at 106, 502 N.E.2d at

1382. This court’s majority opinion pays lip service to this prin-

ciple of statutory construction, but then overlooks the central

point of the dissenting justices’ opinion. When the dissent said

it was construing the MCRA to avoid constitutional questions,

it was doing precisely that: avoiding the constitutional question,

not deciding it. It is only by ignoring the very words of the dis-

sent, and inverting the maxim of statutory construction invoked

by the dissent, that the majority of this court purports to find

within the SJC dissent a resolution of the constitutional ques-

tion.

For its third reason to justify avoiding the federal issues in

this case, the majority latches on to dictum in the dissent from

the SJC. In this dictum, the dissenters identified an additional

possible statutory defense for the BSO, namely, that ‘‘merely‘‘

cancelling the performance was not ‘‘threats, intimidation or

coercion’’ within the meaning of the MCRA. See 399 Mass. at

110, 502 N.E.2d 1385; supra at 52-53. Importantly, this argu-

ment was not articulated by any party to this case nor was it

addressed in any fashion by either the plurality or the concur-

ring justices of the SJC. It was simply a suggested theory, virtu-

ally an aside, presented in the last paragraph of the dissent. At

that, the dissenting justices noted only that it was ‘‘doubtful’’

that the BSO’s action amounted to ‘‘interference with secured

rights by threats, intimidation or coercion.’’ 399 Mass. at 110,

502 N.E.2d at 1385 (O’Connor, J., dissenting).

Nevertheless, the majority speculates that there ‘‘would’’ be

‘‘unanimity”’ on this theory. Supra at 54. The majority identi-

fies no precedent of the SJC that supports such speculation. It

merely points out that the SJC, like all courts, normally con-

strues statutes so as to avoid constitutional difficulties and also

notes that ‘‘none of the other justices rejected’’ the dissent’s

‘*novel‘‘ statutory argument. Jd. I think it obvious that this

important issue of statutory construction cannot stand on such

$2a

a flimsy foundation. To begin with, I can ascribe no signifi-

cance to the fact that the plurality and concurring justices failed

to reject this argument given that no party ever raised the issue

and it was not even the basis for the dissent. More fundamen-

tally, I think that the majority’s facile interpretation of the stat-

ute is absolutely untenable as applied to the facts of this case.

The BSO did not ‘‘merely’’ cancel a performance, it cancelled

an employment contract with Redgrave—essentially fired her—

on the basis of community reaction to her political beliefs. In so

doing, the BSO substantially undermined Redgrave’s ability to

obtain other work, as evidenced by the fact that this court has

affirmed an award to Redgrave of $12,000 in consequential

contract damages. See part II supra. Even if they do not

amount to ‘‘threats’’ or ‘‘intimidation,’’ I fail to see how the

BSO’s actions, affecting Redgrave’s fundamental right to

work, can be characterized as other than ‘‘coercive’’ within the

meaning of the MCRA.

In sum, I do not agree with the majority’s selective reading of

the SJC’s opinions. I find no basis in those opinions for reject-

ing Redgrave’s claims on state law grounds. Accordingly, I

move on to consider the issues not resolved by the SJC: possible

defenses for the BSO under the Massachusetts Declaration of

Rights and the United States Constitution.

B. Application of the Massachusetts Declaration of Rights

Although the issue of a possible state constitutional defense

for the BSO was not reached by a majority of the SJC, it

remains (at least potentially) an important question in this case.

For, if the Massachusetts Declaration of Rights does provide an

adequate and independent state law basis for precluding appli-

cation of the MCRA to the BSO, we need not reach the ques-

tion of a possible federal constitutional defense. The answer to

this question is, however, as simple as it is important: insofar as

freedom of speech is concerned, the Massachusetts and federal

rights have previously been held to be coextensive. In the words

of the SJC, ‘‘the criteria which have been established by the

United States Supreme Court for judging claims arising under

the First Amendment . . . are equally appropriate to claims

53a

brought under the cognate provisions of the Massachusetts

Constitution.’’ Opinions of the Justices to the House of Repre-

sentatives, 387 Mass. 1201, 1202, 440 N.E.2d 1159, 1160 (1982)

(quoting Colo v. Treasurer & Receiver General, 378 Mass. 550,

558, 392 N.E.2d 1195, 1200 (1979) (same holding)).”

To determine the breadth of constitutional free speech

defenses in Massachusetts, then, we need only construe the fed-

eral Constitution itself and we will have our answer. Moreover,

because Massachusetts has chosen to base the interpretation of

its own free speech rights on analogous federal rights, as a fed-

eral court we cannot avoid construing the federal Constitution

even if we could find a state court opinion directly on point.

Any decision by the SJC that the BSO has a state constitutional

defense to MCRA liability is virtually the same as, and indistin-

guishable from, a ruling that the BSO has a federal constitu-

tional defense. Such a state court interpretation of federal law

is, Of course, not binding authority on the federal courts.

The majority opinion attempts to evade the impact of this

point by referring to a law review article by Justice Wilkins,

who wrote the concurring opinion in the SJC. Justice Wilkins’

article discusses generally the relationship between the United

States Constitution and the Massachusetts Declaration of

Rights and, among other things, it explores ‘‘the future pros-

pects for construing [the Massachusetts free speech guarantees]

as divergent from the First Amendment.’’ Supra at 58 (empha-

sis added). Based solely on this law review commentary, the

majority says it feels confident that when Justice Wilkins

referred to the Declaration of Rights in his concurrence, he con-

clusively signalled that the Massachusetts Constitution was to

be interpreted as different from the United States Constitution.

I do not agree. The principle that Massachusetts and federal

free speech rights are coextensive is a firmly established one,

26 ~=This paralleling of federal and state law with respect to constitu-

tional defenses mirrors the fact that the MCRA itself is patterned after and

essentially coextensive with federal law. See Redgrave, 399 Mass. at 98, 502

N.E.2d at 1378 (‘‘The remedy provided in [the MCRA] is coextensive with

_ the remedy provided by Federal law by means of 42 U.S.C. § 1983 (1982),

except that the State statute does not condition the availability of the remedy

On state action.’’) (plurality opinion).

54a

noted in many opinions of the SJC. See, e.g., cases cited supra

at 75. It has never seriously been questioned in any SJC opin-

ion.”” This principle leads to the inescapable presumption that

whenever the SJC rules on the state constitutional right to free

speech, it is also ruling on the first amendment. The extrajudi-

cial commentary of a single justice does not alter this presump-

tion. If anything, Justice Wilkins’ law review article

demonstrates a familiarity with past SJC practice such that if he

had wanted to depart from the established rule, he would have

done so explicitly.

In discussing its own jurisdiction in Michigan v. Long, 463

U.S. 1032 (1983), the Supreme Court also explored the inter-

27 The majority has cited three SJC cases in an effort to demonstrate

that the SJC has, ‘‘in certain circumstances,’’ interpreted the Massachusetts

free speech guarantees as divergent from federal rights. Supra at- $8. The

cases, however, do not support that proposition. One of the cases, Common-

wealth v. Upton, 394 Mass. 363, 476 N.E.2d 548 (1985), is actually a fourth

amendment search and seizure case and has nothing to do with free speech

rights. The other two cases, Cabaret Enterprises, Inc. v. Alcoholic Beverages

Control Comm’n, 393 Mass. 13, 468 N.E.2d 612 (1984), and Commonwealth

v. Sees, 374 Mass. 532, $36-38, 373 N.E.2d 1151 (1978), do involve free

speech rights, but do not constitute breaks from the Supreme Court’s inter-

pretation of the first amendment

Both cases involve nude dancing, an activity which is treated as protected

expression under both the state and federal constitutions. See Schad v. Bor-

ough of Mount Emphraim, 452 U.S. 61 (1981); Doran v. Salem Inn, Inc.,

422 U.S. 922, 932 (1975); Cabaret Enterprises, supra; Sees, supra. Federal

and state law regarding nude dancing varies only in that under the fwenty-

first amendment to the United States Constitution, federal courts must allow

states “‘broad powers . . . to regulate the sale of liquor, [including the right

to] ban [nude] dancing as part of [their] liquor license program.’’ Doran, 422

U.S. at 932-33. By contrast, ‘‘no provision of [the Massachusetts] Constitu-

tion gives a preferred position to regulation of alcoholic beverages’’ and so

nude dancing retains its full panoply of constitutional free speech protections

even if performed on premises licensed to serve alcohol. Sees, 374 Mass. at

$37, 373 N.E.2d at 1155.

Neither Sees nor Cabaret Enterprises, therefore, represents a departure

from the established principle that the SJC will follow Supreme Court /irst

amendment precedent in deciding free speech claims under the Massachusetts

Constitution. They merely evidence the fact that, unlike the Massachusetts

Constitution, the federal Constitution has a twenty-first amendment as well

as a first amendment. This case, of course, involves no liquor-regulating

issues and so the Sees/Cabaret Enterprises distinction is clearly inapplicable.

55a

play between analogous state and federal constitutional guaran-

tees, and developed a firm rule to be applied by federal courts in

determining whether a state court decision rests on ‘‘adequate

and independent state grounds’’ such that federal review would

be inappropriate. As the Court noted, the ‘‘adequate and inde-

pendent state courts, as well as avoidance of rendering advisory

opinions.’’ Jd. at 1040. It provides that where there is no dis-

positive issue of federal law, the federal courts will not disturb

state court rulings. The aplication of the doctrine has not, how-

ever, always been easy. The problem confronted by the Long

court was this: state constitutional rulings often do not make

clear whether the basis for the ruling is the federal Constitution

or an independent provision of the state constitution. Prior to

Long, such ambiguity had lead to a series of inconsistent and

‘*unsatisfactory”’ ‘‘ad hoc’’ decisions by the Court. Jd. at 1039.

Thus, in Long, the ‘‘plain statement’’ rule was set down:

[W]hen . . . a state court decision fairly appears to rest

primarily on federal law, or to be interwoven with the fed-

eral law, and when the adequacy and independence of any

possible state law ground is not clear from the face of the

opinion, we will accept as the most reasonable explanation

that the state court decided the way it did because it

believed that federal law required it to do so.

[Thus,] in determining. . . whether. . . to review a case

that is alleged to rest on adequate and independent state

grounds, we merely assume that there are no such grounds

when it is not clear from the opinion itself that the state

court relied upon an adequate and independent state

ground and when it fairly appears that the state court

rested its decision primarily on federal law.

Id. at 1040-42 (citations omitted) (emphasis added).

As I have already stated, I believe that neither the SJC plural-

ity opinion nor the dissent can fairly be read to have decided or

opined on any constitutional issue. However, even assuming

that all three opinions suggested a constitutional ruling, none

satisfies the Long plain statement test and none, therefore, jus-

tifies the majority’s evasion of the federal constitutional issues

56a

raised. With respect to the plurality and the dissent, this court's

majority opinion itself notes that neither ‘‘distinguished

between possible state and federal sources.’’ Supra at 57. To the

extent those opinions have any constitutional dimension, they

are precisely the kind of ‘‘opaque”’ state court rulings that Long

was intended to address. See supra at 60.

The majority attempts to overcome this facia! violation of the

plain statement rule through its ‘‘confidence’’ that the plurality

and dissenting justices ‘‘would’’ decide this case on state consti-

tutional grounds if that issue were presented to them. Supra at

60. Speculation about what the SJC ‘‘would”’ decide does not,

however, a plain statement make, and without a plain statement

that the justices intended to rely independently on the Massa-

chusetts Constitution, we must, under Long, assume that the

justices were relying on the federal Constitution.

The opinion of the two concurring justices presents a some-

what more difficult question with respect to the plain statement

rule because it did rely on the Massachusetts Constitution with-

out explicitly referencing the federal Constitution. As previ-

ously noted, however, in invoking the Massachusetts

Declaration of Rights, the concurring justices expressed no

intent to depart from the established rule that state free speech

rights are identical to and based on federal rights. Their opin-

ion, therefore, does not provide ‘‘independent grounds’’ as

required by Long.”®

Overall, the majority has read between the lines of the SJC’s

three opinions, ferreted out a constitutional ruling where none

was intended, and then blindly deferred to that ruling in the

complete absence of any plain statement of adequate and inde-

pendent state grounds.” This flouts the compelling logic and

binding precedent of Long.

28 Even if the concurring justices had stated that, contrary to prior

practice, their state constitutional ruling was independent of the federal Con-

stitution, their opinion represents the views of only two members of the SJC.

The remaining majority of five justices concededly found no independent

ground.

29 Strangely, in arguing that the SJC’s opinions did rest on adequate

and independent state grounds, the majority makes much of the fact that

57a

The ultimate irony in this manipulative reading of the SJC’s

opinions lies in its purported justification: faithfulness to

‘principles of comity and federalism.’’ Supra at 40. Certainly,

the process whereby federal courts certify doubtful questions of

state law to state courts can ‘‘save time, energy, resources and

hel{p] build a cooperative judicial federalism.’’ Lehman Bros.

v. Schein, 416 U.S. 386, 391 (1974). And where, as here, a state

court delivers a definite answer to a question of state law which

has been put to it, in the interest of comity that answer is nor-

mally conclusive in federal court. Even a definite answer to a

question of state law not explicitly certified is welcome and enti-

tled to considerable deference. But such principles simply are

not involved in the extraordinary action taken by this court

today. Not only does the majority of this court ignore the direct

answers supplied by the SJC to the questions we certified, it

finds controlling a question of law that was never even reached

by a majority of the SJC.

The root of the problem presented by the majority's handling

of this case, I believe, lies not with any error by the SJC, but

with a mistake by the original panel in this case (which included

me). When we certified our two questions to the SJC, we erred

by not framing questions that were complete enough and broad

enough in scope to elicit definitive answers from the SJC on all

relevant, unresolved questions of Massachusetts law. But rather

than admitting this error, and certifying new questions to the

SJC, the majority now compounds our mistake by entering into

a guessing game about what the SJC ‘‘would’’ have done if we

had certified sufficiently broad questions. The majority opinion

is riddled with terms of speculation, actually using the word

*‘would’’ more than twenty times to describe what the SJC

**would”’ decide if all the state law issues had been put squarely

before it.

The majority’s opinion amounts to nothing more than a pre-

diction, a “‘hunch,’’ based on comments, or at best dicta, con-

none of the opinions explicitly mentioned the federal Constitution. Supra at

60. Of course, five of the justices failed to mention the state Constitution as

well—eschewing any constitutional ruling—because no constitutional issue

had been certified to the SJC for resolution in the first place.

a - ——

58a

tained in the SJC’s opinions, that the SJC ‘‘would’’ decide the

question of constitutional law raised by this case in favor of the

BSO and that the state constitutional ruling ‘‘would’’ be inde-

pendent from the federal Constitution. This approach turns

comity on its head, and makes a mockery of the certification

process.

Far from deferring to state court prerogative, the majority’s

action places a federal court in the position of itself deciding a

delicate and unresolved question of state law. In so doing, the

court disregards the words of the SJC’s answers to the certified

questions by reading into those answers a view the SJC

expressly declined to adopt. And, to make matters worse, the

court has resolved the state law issues in a manner that actually

constitutes a break with existing state court precedent. Today,

the United States Court of Appeals for the First Circuit effec-

tively makes itself the first court ever to hold, as a matter of

state law, that free speech rights under the Massachusetts Con-

stitution are not based on federal court interpretations of the

first amendment.

This concludes my reasons for disagreeing with the majori-

ty’s interpretation of the SJC opinions. My opinion cannot,

however, end here. In order to fully resolve the issues of the

case, and to demonstrate why the result reached by the majority

is wrong, I must discuss whether the BSO has a first amendment

defense that blocks application of the MCRA.

I]. THE FIRST AMENDMENT “ARTISTIC INTEGRITY”

DEFENSE

The next issue, therefore, is whether the BSO has, as it

asserts, a first amendment ‘‘artistic integrity’’ defense to its vio-

lation of the MCRA. Although the words ‘“‘artistic integrity’’

evoke a positive response and sound as if they ought to come

within the protective mantle of the first amendment, I have

found no case explicitly recognizing a first amendment right of

‘*artistic integrity.’’ The term is hard to define. It can mean an

actor’s desire to perform a role as she wishes, the right of an

artist to write, paint, or compose free of any outside restraints,

59a

or a myriad of other activities involving artistic creation and

expression. In the context of this case, however, and as articu-

lated by the BSO, it means the right of the BSO to refuse to per-

form Oedipus Rex under less than optimal audience conditions.

I recognize that the BSO has a first amendment right to control

its artistic expression but, like every other first amendment

right, this one is not an absolute.

The MCRA provides a cause of action against ‘‘any person

or persons, whether or not acting under color of law, [who]

interfere by threats, intimidation of coercion’’ with the free

speech rights of another. Redgrave argues that the BSO’s

refusal to perform with her as narrator was motivated, as it

clearly was, by the public outcry over her open endorsement of

the Palestine Liberation Organization (PLO). She claims that

she was deprived of employment because of her political views

and that this deprivation amounted to coercion. The SJC

agreed, rejecting the BSO’s proffered statutory defenses to

MCRA liability.

This case thus presents a clash between Redgrave’s right

under the MCRA not to be punished for her public espousal of

unpopular political views, and the BSO’s asserted first amend-

ment right to control its artistic expression. It requires the appli-

cation of a standard approach to first amendment issues: the

balancing of two competing rights. In a number of recent cases,

the Supreme Court has considered similar challenges to state

antidiscrimination laws that, like the MCRA, incidentally

infringe the right to free speech. Under the Court’s now well-

established test, such laws survive so long as they are necessary

to serve a compelling state interest that is unrelated to the sup-

pression of ideas. E.g., Board of Directors of Rotary Int’l v.

Rotary Club, 107 S. Ct. 1940, 1947-48 (1987); Roberts v.

United States Jaycees, 468 U.S. 609, 628 (1984).

In order to apply that test to this case, I begin by examining

the MCRA and Massachusetts’ interest in passing it. The effect

of the MCRA in this case is to further the Commonwealth’s

interest in preventing the abridgement of speech. There can be

no denying that this interest is substantial. Political speech, like

the pro-PLO speech for which Redgrave has been made to suf-

fer, is a particularly valuable and protected commodity. See,

nepeeserennnneeemeenntenensenenneemmmiaueaiill

60a

e.g., Keyishian v. Board of Regents, 385 U.S. 589 (1967); New

York Times Co. v. Sullivan, 376 U.S. 254 (1964). Neither the

federal government nor the states may regulate such speech on

the basis of its content absent a clear and present danger. See

Brandenburg v. Ohio, 395 U.S. 444 (1969). And, unless accom-

panied by a present intent to overthrow the government and an

actual likelihood of concrete harm, even subversive political

speech is protected and may not be made the basis for discrimi-

nation by the government. /d. The Commonwealth has rein-

forced the centrality of these first amendment values by passing

a Statute that broadens the reach of free speech rights. By elimi-

nating the state action requirement of 42 U.S.C. § 1983, the

MCRA proscribes the abridgement of speech rights by private

actors, such as the BSO, as well as by state actors, such as the

Commonwealth itself.

The Supreme Court has noted that the states and the federal

government have a compelling interest in eliminating invidious

discrimination by private persons on the basis of race and sex.

Consequently, it routinely has upheld statutes aimed at eradi-

cating such discrimination, even though they have the inciden-

tal effect of abridging the first amendment rights of the

discriminators. E.g., New York State Club Ass'n v. City of

New York, 108 S. Ct. 2225 (1988); Rotary Int'l, 107 S. Ct.

1940; Roberts, 468 U.S. 609; Bob Jones University v. United

States, 461 U.S. 574 (1983). I believe that a similar analysis

should be applied to the MCRA, which, among other things,

prohibits discrimination on the basis of speech or politics.

Branding it ‘‘an unusual statute,’ however, the majority

attempts to distinguish the MCRA from “‘traditional"’ statutes

such as Title VII, which forbid racial and gender discrimina-

tion. Supra at 41. The majority declares that it ‘‘makes sense to

treat private individuals similarly to the state’’ in order to com-

bat racial discrimination. Jd. On the other hand, it does not

30 ~=The majority cites the New York State Club Ass'n and Roberts cases

for the proposition that ‘‘discrimination might in some circumstances be jus-

tified in order to preserve expressive integrity,"’ supra at 43 n.17, but neglects

to mention that its cited proposition and the remarks it quotes are merely

dicta. In both cases, by overwhelming majorities, the Court upheld the chal-

lenged statute and dismissed the first amendment argument.

6la

*‘make sense’’ to the majority to accord similar treatment to

individuals who discriminate on the basis of political speech.

The majority asserts that, unlike the right to be free from racial

discrimination, the right to free speech ‘“‘traditionally has con-

tent only in relation to state action. . . . The right is to be free

of state regulation.’’ Jd.

l am at a loss to understand the majority's position except as

the ‘‘common sense’’ of federal judges so wedded to ‘‘tradi-

tional’’ thinking that they simply refuse to accept the basis for

Massachusetts’ innovative antidiscrimination law. Certainly it

is not true that the right to be free from racial discrimination is

by definition less dependent on state action than the right to be

free from restraints on speech. Even today, a primary legal

guarantee against racial discrimination in this country is the

equal protection clause of the fourteenth amendment which, of

course, applies only to state action. Moreover, prior to the civil

rights revolution of the 1960s, many Americans, including fed-

eral judges, thought that it did not ‘‘make sense,’’ even through

legislation, to extend that antidiscrimination mandate to private

persons. See, e.g., Civil Rights Cases, 109 U.S. 3 (1883) (hold-

ing that public accommodations such as railroads and hotels

were immune from federal legislation aimed at racial discrimi-

nation because they did not involve state action).

It is also important to note that the first amendment’s free

speech guarantee textually applies to action by the federal gov-

ernment alone.” It is the fourteenth amendment’s due pro-

cess guarantee which extends to individuals a federal right to

free speech enforceable against the states. Gitlow v. New York,

268 U.S. 652, 666 (1925). Therefore, insofar as action by states

is concerned, the same amendment—the fourteenth amendment

—provides individuals with both their right to free speech and

their right to be free from invidious racial discrimination. How,

then, can the majority argue that the free speech right is inher-

ently more dependent on state action than the antidiscrimina-

tion right?

Virtually all antidiscrimination rights, whether they pertain

to discrimination on the basis of race, sex or political belief,

31 “Congress shall make no law . . . abridging the freedom of speech,

or of the press." U.S. Const., Amend. I (emphasis added).

———~

62a

find their ‘‘traditional’’ basis in constitutional guarantees

which are limited to state action. However, just as Congress

through Title VII extended rights against racial discrimination

to encompass actions by private persons, so has Massachusetts

through the MCRA extended protection to persons like Red-

grave whose free speech rights are abridged by private persons.

Certainly, laws against racial discrimination have a somewhat

more established track record than the Redgrave’s use of the

MCRA, but I find particularly repugnant the majority’s asser-

tion that because Redgrave’s claim is innovative, it does not

**make sense.”’

Turning to the constitutional rights aspect of the balancing

equation, the BSO argues, in its defense, that its own interest in

interpreting and presenting Oedipus Rex as it wishes precludes

liability to Redgrave under the MCRA. It asserts that the can-

cellation of her contract, in response to threats of audience dis-

ruption arising out of a disagreement with her prior political

expression, was a legitimate means of maintaining artistic con-

trol over the production and did not give rise to liability under

the MCRA.

It is necessary to state what the BSO has not alleged. The

BSO has never claimed that it cancelled the contract with Red-

grave as a symbolic act meant to communicate its disapproval

of the PLO. Indeed, this court unanimously has rejected the

idea that the BSO’s firing of Redgrave intended to be any kind

of symbolic speech or ‘‘statement.’’ Supra at 17. Had the BSO

intended to communicate such expression, we would be con-

fronted by a more difficult case, with a conflict between two

compelling speech interests: that of Redgrave to be free, under

the MCRA, of economic retaliation by an employer for her

views On matters of significant public import, and that of the

BSO to be free, under the first amendment, of state encroach-

ment on its right to express itself on those same matters.

In fact, the district court found, and it seems beyond dispute,

that the BSO cancelled its contract with Redgrave out of con-

cerns stemming from the potential for disruption during her

narration. As the BSO acknowledges and as the record explic-

itly reveals, BSO agents feared disruption because they received

63a

threatening telephone calls from persons protesting the engage-

ment on political grounds:

One caller. . . stated that there would be ‘‘bloodshed and

violence’’ at Symphony Hall if Redgrave appeared. Other

callers promised ‘‘trouble,’’ and some stated that the Red-

grave engagement would ‘‘haunt’’ the Symphony, that

Redgrave should perish, and that the Symphony would

‘*mourn.’’ The persons at the Symphony who received

these calls were alarmed and frightened.

BSO Opening Brief at 7. In the words of one BSO agent, ‘‘it

was the reaction against her politics that was the problem.’’

The only possible conclusion to be drawn from this record

and from the findings of the district court is that the BSO can-

celled its contract with Redgrave in acquiescence to pressure

from persons who disagreed with her political views and who,

therefore, sought to retaliate against her. The BSO’s asserted

first amendment right, then, was not an independent artistic

judgment to cancel the performance of Oedipus Rex but an

instance of caving in to third-party pressure. The BSO, by

doing so, effectively has blacklisted Redgrave.

The Supreme Court previously has held that fear of commu-

nity reaction is no defense to an action for discrimination on the

basis of race. See Palmore v. Sidoti, 466 U.S. 429, 433 (1984)

(‘‘The Constitution cannot control such prejudices but neither

can it tolerate them. Private biases may be outside the reach of

the law, but the law cannot, directly or indirectly, give them

effect.’’); Buchanan v. Warley, 245 U.S. 60, 81 (1917) (similar).

The BSO argues that in this case the acquiescence to third-party

pressure was justified by the necessity of protecting the artistic

integrity of its own performance. The BSO’s musical director,

Seiji Ozawa, testified to his belief that, if police were in the

audience, the performers could not concentrate, and that, if

somebody shouted or booed, the performance might not be

able to continue. The artistic administrator, Bernell, referred .o

the possibility of police lining the halls as a threat to ‘‘artistic

integrity.’’ The BSO president, Darling, remembered a conver-

sation in which Ozawa commented that the presence of security

forces would change the artistic format of the performance.

senate

64a

By invoking a broad-based defense in the name of ‘“‘artistic

integrity,’’ the BSO is, in essence, asserting a right to unlimited

discretion in the presentation of its work. ‘‘Artistic integrity,’’

as the BSO defines it, means the absolute and unrestricted

power to determine everything about the performance—from

the choice of the production to the hiring of performers, to the

quality of the audience ambience. The effect of allowing such a

defense would be that the BSO itself would determine when the

MCRA would and would not apply simply by deciding what is

‘*artistic’’ and what is not. Under the rubric of ‘‘artistic integ-

rity,’’ the BSO could insulate itself from any but the most

superficial legal scrutiny.

The very breadth of this proposed defense renders it suspect.

Although I recognize that the BSO does have a first amendment

right to control its artistic expression, I do not believe that this

right is so broad and so absolute as to outweigh Massachusetts’

interest in protecting Redgrave’s rights. Cf. Kovacs v. Cooper,

336 U.S. 77, 88 (1949) (‘‘To enforce freedom of speech in disre-

gard of the rights of others would be harsh and arbitrary in

itself.’”). Neither the majority of this court nor the BSO seri-

ously has suggested that Massachusetts does not have a compel-

ling state interest in enacting legislation to protect the free

speech rights of citizens in the Commonwealth. Nor has anyone

argued that the MCRA does not represent the least restrictive

means of achieving that purpose. Rather, the BSO asserts an

absolute right against any infringement of its artistic expres-

sion. Under established Supreme Court precedent, it is clear

that this argument must be rejected.

In Board of Directors of Rotary Int’l vy. Rotary Club, 107 S.

Ct. 1940 (1987), Rotary International asserted that an absolute

right of free association and expression under the first amend-

ment immunized it from a California statute prohibiting dis-

crimination on the basis of sex. The Court rejected Rotary

International’s claim, noting that even if the California act did

‘‘work some slight infringement on Rotary members’ right of

expressive association, that infringement is justified because it

serves the State’s compelling interest in eliminating discrimina-

tion against women.”’ Id. at 1947; see also Roberts v. United

States Jaycees. 468 U.S. 609 (1984) (rejecting a similar chal-

6Sa

lenge by the United States Jaycees to a Minnesota antidis-

crimination statute). This holding was recently reaffirmed in

New York State Club Ass’n v. City of New York. 108 S. Ct.

2225 (1988), where the Supreme Court rejected a facial chal-

lenge to a New York City ordinance prohibiting discrimination

in certain private clubs. I believe these cases conclusively estab-

lish that the BSO’s claim to absolute first amendment immunity

from state antidiscrimination laws is contrary to governing con-

stitutional precedent.”

If the Commonwealth were attempting to dictate how Oedi-

pus Rex should be presented, an entirely different case would be

presented. Such an extreme and probably unjustifiable exercise

of state power would almost certainly be a violation of the first

amendment. Here, however, the Massachusetts statute does not

take control of the production away from the BSO. It merely

holds the BSO to its own previously and voluntarily adopted

contractual obligations. The BSO is still free to interpret and

perform Oedipus Rex as it chooses. The only constraint

imposed upon the BSO by operation of the MCRA is that the

BSO cannot cancel the performance in reaction to anticipated

audience disruption.

History and experience teach that the risk of catcalls, boos,

disruptions, and even being the target of vegetable projectiles is

32 The majority has turned the BSO’s absolutist first amendment claim

on its head, instead suggesting that in order to apply the MCRA to the BSO,

this court would have to adopt the absolutist position that there could never

be a first amendment defense to the BSO. The majority thus marches out a

‘parade of horribles,’’ asserting that under my interpretation of the MCRA,

the statute would be used to control the editorial practices of newspapers.

Supra at 42, 48 n.21. This far-fetched hypothetical, however, demonstrates

that the majority has missed the point. First amendment claims are not made

of absolutes, they involve the balancing of competing interests. Each case

must be judged on its own specific facts, and I am more than willing to con-

cede that certain applications of the MCRA, including the majority’s news-

paper hypothetical, would be plainly impermissible under the first

amendment. See New York State Club Ass’n, 108 S. Ct. at 2233-35 (noting

that there might be applications of the New York City ordinance that would

be unconstitutional, but adding that such cases must be considered on their

own facts); Coffin, Judicial Balancing: The Protean Scales of Justice, 63

N.Y.U. L. Rev. 16 (1988) (a thoughtful espousal of careful, open and

detailed judicial balancing in constitutional civil rights cases).

66a

inherent in any public performance by artists who seek to enter-

tain and/or educate the public. Indeed, it could be argued that

the audience has a first amendment right to object vociferously

to an artistic performance. The record in this case contains a

strong dissent from Peter Sellars, the stage director hired by the

BSO for the production, to Ozawa’s opinion that the presence

of police or expressions of displeasure by the audience would

affect adversely the BSO’s performance. Sellars testified that

there is a ‘‘rich history of disruption’’ in the history of musical

concerts and that, rather than shocking, ‘‘it is an important

part of the concert to have a strong audience reaction.’’ He

pointed out that at the first performance of Stravinsky’s Rites

of Spring, ‘‘there were riots [and] the audience was stamped-

ing.’’ But Sellars went even further. He stated that ‘‘music has a

responsibility to incite and is very exciting in this way.’’ He

believed that, far from disrupting the performance, the pres-

ence of police officers in Symphony Hall could be incorporated

into the drama of Oedipus Rex. Sellars declared that the politi-

cal tensions surrounding Redgrave’s performance could result

in a ‘‘living recreation’’ or even a ‘“‘living creation’’ of the

moral essence of the drama of Oedipus Rex.

To recognize an absolute first amendment defense of ‘‘artis-

tic integritv,’’ as the BSO urges, would flout the very values

that the first amendment and the MCRA protect. It would

mean that a performing artist, or group of artists, could deny

another artist her statutorily protected right to perform because

of fear that the audience might interrupt the performance. This

is the opposite of ‘‘artistic integrity’’; it allows the audience to

dictate who shall perform and what shall be played. ‘‘Artistic

integrity’’ under this view would be a license for the heckler’s

veto in the arena of artistic expression.

But perhaps the strongest illustration of the weakness of the

BSO’s asserted absolute first amendment defense lies in exam-

ining the potentially nightmarish consequences of recognizing

it. If the first amendment extends absolute protection to the

BSO when it fired Redgrave in response to public outcry over

her political views, why would it not also protect the BSO in

caving in to public views about her sex, her race, or her reli-

gion? If, in another case, the BSO refused to hire a Black per-

67a

former because it felt that protests by bigots would be so intense

as to compromise the BSO’s “‘artistic integrity,’’ then the Black

performer should have a cause of action under the MCRA

against the BSO for infringing her rights under the equal pro-

tection clause and any analogous state constitutional provisions

banning race discrimination. But the ‘“‘artistic integrity’

defense would impose a fatal barrier to the application of the

MCRA. And there is no reason to assume that the same defense

would not also extend to other institutions, such as newspapers

and universities, that engage generally in first amendment activ-

ity. In order to qualify for protection, these institutions would

only need to characterize their discriminatory acts as based on

artistic or intellectual choices and thus effectively foreclose leg-

islative or judicial scrutiny.

Ironically, the BSO conceded at oral argument that the first

amendment would not protect it from liability for race or sex

discrimination. But its attempt to portray laws against race or

sex discrimination as having deeper historical roots than laws

against discrimination on the basis of political views is not only

doctrinally unsound, but historically incorrect. The first

amendment, and not the equal protection clause, is the long-

standing tradition. The passage of the equal protection clause,

and its concomitant application to Blacks came over one hun-

dred years after the passage of the Bill of Rights. And the appli-

cation of the equal protection clause to women is too recent to

characterize as anything short of an innovation.

In conclusion, it is important to point out that the elimina-

tion of the state action requirement by the MCRA puts the BSO

in the place of the state. Of course, the BSO retains its first

amendment rights against the Commonwealth. But now, by

operation of the MCRA, it also has obligations like those of the

Commonwealth itself not to abridge the free speech rights of

others. In cancelling its contract with Redgrave, the BSO repu-

diated that obligation and thwarted the Commonwealth’s com-

pelling interest in preventing the abridgement of speech.

I respectfully dissent.

68a

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

—

No. 85-1305

VANESSA REDGRAVE and VANESSA REDGRAVE

ENTERPRISES, LTD.,

Plaintiffs, Appellants,

—Y.—

BOSTON SYMPHONY ORCHESTRA, INC.,

Defendant, Appellee.

>

No. 85-1341

VANESSA REDGRAVE and VANESSA REDGRAVE

ENTERPRISES, INC.,

Plaintiffs, Appellees,

—V.—

BOSTON SYMPHONY ORCHESTRA, INC.,

Defendant, Appellant.

JUDGMENT

Entered: August 31, 1988 These causes came on to be heard

on petition for rehearing en banc, and were argued by counsel.

Upon consideration whereof, It is now here ordered,

adjudged and decreed as follows:

69a

The judgment on the MCRA claim is affirmed and the judg-

ment on the contract claim is vacated and remanded to the dis-

trict court for entry of judgment for consequental damages to

the extent approved in the opinion filed this date.

No costs.

By the Court:

FRANCIS P. SCIGLIANO

Clerk.

[cc: Messrs: Kornstein, Sullivan, Geller, Klipp, Burling and Ms.

Arnwine]

70a

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

a

No. 85-1305

VANESSA REDGRAVE and VANESSA REDGRAVE

ENTERPRISES, LTD.,

Plaintiffs, Appellants,

asf

BOSTON SYMPHONY ORCHESTRA, INC.,

Defendant, Appellee.

>

No. 85-1341

VANESSA REDGRAVE and VANESSA REDGRAVE

ENTERPRISES, LTD.,

Plaintiffs, Appellees,

—Y,—

BOSTON SYMPHONY ORCHESTRA, INC.,

Defendant, Appellant.

Before:

Coffin, Bownes, Breyer, Torruella and Selya,

Circuit Judges.

i

7la

ORDER OF COURT

Entered: September 20, 1988 Treating the ‘‘Motion of

Plaintiffs-Appellants for Rehearing and For Certification of

Issues to the Massachusetts Supreme Judicial Court’’, as a

motion for leave to file the same,

It is ordered that said motion be, and the same hereby is,

denied.

By the Court:

- FRANCIS P. SCIGLIANO

Clerk.

{cc: Messrs: Kornstein, Sullivan, Geller, Klipp, Burling and Ms.

Arnwine]

* Judge Campbell is recused. —

72a

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

—

No. 85-1305

VANESSA REDGRAVE and

VANESSA REDGRAVE ENTERPRISES, LTD.,

Plaintiffs, Appellants,

—-V.—

BOSTON SYMPHONY ORCHESTRA, INC.,

Defendant, Appellee.

—

No. 85-1341

VANESSA REDGRAVE and

VANESSA REDGRAVE ENTERPRISES, LTD.,

Plaintiffs, Appellees,

_Vi—

BOSTON SYMPHONY ORCHESTRA, INC.,

Defendant, Appellant.

-—

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

{Hon. Robert E. Keeton, U.S. District Judge]

>

Before

COFFIN, BOWNES and SELYA,

Circuit Judges.

>

=

73a

Daniel J. Kornstein with whom Marvin Wexler and Korn-

stein Veisz & Wexler were on brief for Vanessa Redgrave and

Vanessa Redgrave Enterprises, Ltd.

David Alter, Joseph Ferraro, Brian W. Guillorn and Shea &

Gould on brief for Screen Actors Guild, Inc., Amicus Curiae.

Robert P. Sherman, Victoria A. Judson, Lawyers’ Commit-

tee For Civil Rights Under Law Of The Boston Bar Associa-

tion, F. Anthony Mooney, Susan G. Winkler, Hale & Dorr,

and Marjorie Heins, Massachusetts Civil Liberties Union Foun-

dation, on brief for Lawyers’ Committee For Civil Rights

Under Law Of The Boston Bar Association and the Civil Liber-

ties Union Of Massachusetts, Amici Curiae.

Robert E. Sullivan with whom John T. Harding, Jr., Cassan-

dra Warshowsky, Palmer & Dodge, Keith C. Long and Nutter,

McClennen & Fish were on brief for Boston Symphony Orches-

tra, Inc.

Marvin N. Geller, Thomas M. Sobol and Brown, Rudnick,

Freed & Gesmer on brief for American Jewish Congress, Ami-

cus Curiae.

October 14, 1987

COFFIN, Circuit Judge.

Vanessa Redgrave and Vanessa Redgrave Enterprises, Ltd.

appeal from a district court ruling that set aside a jury award to

appellants of $100,000 in consequential damages caused by the

Boston Symphony Orchestra’s breach of contract. Redgrave

also appeals from the district court’s finding that the Massac

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