855 F.2d 888 (1st Cir. 1988), 85-1305, Redgrave v. Boston Symphony Orchestra, Inc.
|Docket Nº:||85-1305, 85-1341.|
|Citation:||855 F.2d 888|
|Party Name:||Vanessa REDGRAVE and Vanessa Redgrave Enterprises, Ltd., Plaintiffs, Appellants, v. BOSTON SYMPHONY ORCHESTRA, INC., Defendant, Appellee. Vanessa REDGRAVE and Vanessa Redgrave Enterprises, Ltd., Plaintiffs, Appellees, v. BOSTON SYMPHONY ORCHESTRA, INC., Defendant, Appellant.|
|Case Date:||August 31, 1988|
|Court:||United States Courts of Appeals, Court of Appeals for the First Circuit|
Heard April 6, 1988.
Daniel J. Kornstein with whom Marvin Wexler and Kornstein Veisz & Wexler, New York City, 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 Ass'n, F. Anthony Mooney, Maria O'Brien Hylton, Hale & Dorr, and Marjorie Heins, Boston, Mass., Massachusetts Civil Liberties Union Foundation, on brief for Lawyers' Committee, for Civil Rights Under Law of the Boston Bar Ass'n and the Civil Liberties Union of Massachusetts, amici curiae.
Robert E. Sullivan with whom John T. Harding, Jr., Cassandra Warshowsky, Palmer & Dodge, Keith C. Long and Nutter, McClennen & Fish, Boston, Mass., were on brief, for Boston Symphony Orchestra, Inc.
Marvin N. Geller, Thomas M. Sobol and Brown, Rudnick, Freed & Gesmer, Boston, Mass., on brief, for American Jewish Congress, amicus curiae.
Todd L.C. Klipp, Stephen A. Williams and Michael B. Rosen, Office of the General Counsel, Boston, Mass., on brief for Trustees of Boston University, amicus curiae.
Philip Burling, Stephen B. Deutsch and Foley, Hoag & Eliot, Boston, Mass., on brief, for Boston College and Tufts University, amici curiae.
Before COFFIN, BOWNES, BREYER, TORRUELLA and SELYA, Circuit Judges.
OPINION EN BANC
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, Secs. 11H--I (1986). Subsequently, the panel opinion and dissent were withdrawn in order to reconsider the MCRA claim in an en banc proceeding.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 Massachusetts law, defendant is not subject to MCRA liability.
The plaintiffs, actress Vanessa Redgrave and Vanessa Redgrave 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 cancellation occurred in the wake of protests over Redgrave's participation 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. 1
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 consequential damages was insufficient.
We conclude, in Part II, that the district court erred in reversing the jury's award of consequential damages, but that Redgrave 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 reasons of Massachusetts law, the BSO is not subject to MCRA liability in these circumstances. We therefore affirm the judgment 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. Following 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 violation 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 community reaction, would implicate the physical safety of the audience 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 performance 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 support a finding of $100,000 in consequential damages was a "close and debatable" one, but concluded that there was sufficient evidence to support the award. Nevertheless, the district court overturned the grant of consequential damages, 2 finding that a First Amendment right of freedom of speech was implicated by the theory of consequential damages advanced by Redgrave 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 coercion," with Redgrave's exercise of free speech rights. Mass.Gen.L. ch. 12, Secs. 11H--I. The district court utilized the jury in an advisory capacity on this claim. In response to special interrogatories, the jury found that the BSO did not cancel the contract 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 disagreed 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 concluded 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 claim.
Redgrave appealed from the district court's entry of judgment notwithstanding the verdict on the consequential damages claim and from the judgment against her on the MCRA claim. The BSO cross-appealed, arguing that even if the First Amendment should be found inapplicable to the consequential damages claim, the evidence of those damages was insufficient to support the verdict.
II. THE CONSEQUENTIAL DAMAGES CLAIM
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 consequential 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 contract 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...
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