Redgrave v. Boston Symphony Orchestra, Inc.

• Decision Date: 13 February 1985
• Docket Number: Civ. A. No. 82-3193-K.
• Citation: 602 F. Supp. 1189
• Parties: Vanessa REDGRAVE and Vanessa Redgrave Enterprises, Ltd., Plaintiffs, v. BOSTON SYMPHONY ORCHESTRA, INC., Defendant.
• Court: U.S. District Court — District of Massachusetts

602 F. Supp. 1189

Vanessa REDGRAVE and Vanessa Redgrave Enterprises, Ltd., Plaintiffs, v. BOSTON SYMPHONY ORCHESTRA, INC., Defendant.

Civ. A. No. 82-3193-K.

United States District Court, D. Massachusetts.

February 13, 1985.

COPYRIGHT MATERIAL OMITTED

Daniel J. Kornstein, Kornstein, Veisz & Wexler, New York City, for plaintiffs.

Keith Long, Robert E. Sullivan, Herrick & Smith, Boston, Mass., for defendant.

Opinion

KEETON, District Judge.

Plaintiffs, Vanessa Redgrave (Redgrave) and Vanessa Redgrave Enterprises, Ltd., sued the Boston Symphony Orchestra, Inc. (BSO) for breach of contract and violation of the Massachusetts Civil Rights Act, Mass.Gen.Laws Ann. ch. 12, § 11H & § 11I (1984). Plaintiffs also made several claims that were held before trial to lack merit as a matter of law. See Redgrave v. Boston Symphony Orchestra, Inc., 557 F.Supp. 230 (D.Mass.1983). All the asserted claims arose from BSO's cancellation of its performances of Oedipus Rex in Boston and New York, in which Vanessa Redgrave was scheduled to appear as narrator. Plaintiffs contend that BSO cancelled the performances in retaliation for Redgrave's public expressions on political issues. BSO argues primarily that the performances were cancelled because of a concern for physical security and a decision that risks of disruption would impair the artistic integrity of the performances. Because Vanessa Redgrave Enterprises, Ltd. was a party to the contract, the contract claim was made on behalf of both plaintiffs. The civil rights claim was asserted only by Redgrave.

The parties presented evidence on the contract and civil rights claims to a jury in a sixteen-day trial. The jury answered special interrogatories favorably to plaintiffs on the breach of contract claim and favorably to BSO on the civil rights claim. The parties have filed cross motions for judgment notwithstanding the jury's verdict.

The claims and defenses asserted during trial present many issues of first impression. Some of these issues are moot in view of the jury's answers to the interrogatories. Others must be resolved to determine the judgment to be entered. First, I address the state civil rights claim and deny Redgrave's motion for judgment notwithstanding the verdict. Second, I examine the breach of contract claim and the measure of damages for breach. I conclude that judgment is to be entered for plaintiffs on the breach of contract claim but that, as a matter of law, damages must be limited to the performance fee.

I. THE CLAIM UNDER THE MASSACHUSETTS CIVIL RIGHTS ACT

The Massachusetts Civil Rights Act provides for a private right of action against "any person 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.Laws Ann. ch. 12, § 11H (1984); id. § 11I. At trial, Redgrave offered two theories to support her contention that BSO violated the civil rights act.

First, Redgrave contended that BSO cancelled the performances because of its disagreement with her public expressions of support for the Palestine Liberation Organization (PLO) and with the intent to retaliate against her for those expressions and to cause her to become less outspoken in the future. The first and second interrogatories submitted to the jury bear upon this theory (as well as bearing upon the claim for consequential damages for breach of contract, discussed in Parts II and III of this opinion). These interrogatories asked whether BSO's primary or only reason for cancelling was that agents who acted for BSO in making the decision to cancel did so because of their disagreement with Redgrave's publicly expressed political views (interrogatory 1), whether one or more of the BSO's agents urged cancellation because of their personal disagreement with those views (interrogatory 2A), and whether BSO would not have cancelled but for their influence (interrogatory 2B). See infra Appendix 1. The jury returned a verdict with negative answers to interrogatories 1 and 2A. By agreeing to the submission of interrogatories 6 to 10 with instructions that they were not to be answered in the event of negative answers to interrogatory 1 and either interrogatory 2A or 2B, Redgrave acknowledged that the jury's negative answers to interrogatories 1 and 2A rejected an essential factual premise of Redgrave's first civil rights theory.

Second, Redgrave claimed that, even if BSO's decision to cancel was not made to express disapproval of her public expression of her political views, BSO should be held liable under the Massachusetts Civil Rights Act because BSO, in cancelling, acquiesced in expressions of disapproval voiced by BSO subscribers and other members of the community. This contention was not submitted to the jury because I concluded at trial, and adhere to the view now, that such acquiescence is not actionable under the Massachusetts statute. Although cancellation because of acquiescence when confronted with the public pressure of a vocal minority may be a breach of contract, it is not a violation of the Massachusetts Civil Rights Act. Neither the cancellation nor the acquiescence, unaccompanied by conduct and intent such as was the subject of interrogatories 1, 2A, 2B, and 6, amounts to "threats, intimidation or coercion," which must be proved to establish a claim under the statute.

The jury's negative answers to interrogatories 1 and 2A, together with the court's ruling on the second theory, preclude any claim based upon the civil rights statute if claims under that statute are subject to jury trial, as Redgrave has contended. If instead, as BSO has contended, a plaintiff asserting a claim under the Massachusetts Civil Rights Act is not entitled to a jury trial, then this court must make fact findings on the subject matter of the first two interrogatories. Both parties have also taken an alternative position that this court should treat the jury's findings as merely advisory. In this event, the court would also have to make findings, although it could treat the jury's findings in answer to interrogatories 1 and 2A as advisory.

I conclude that I need not resolve the difficult and debatable question whether claims under the Massachusetts Civil Rights Act are subject to jury trial in Massachusetts courts, and, if not, whether such claims are nevertheless subject to jury trial in a federal court under the doctrine of Byrd v. Blue Ridge Rural Electric Cooperative, Inc., 356 U.S. 525, 78 S.Ct. 893, 2 L.Ed.2d 953 (1958). If a jury trial is appropriate, the jury's verdict stands, amply supported by evidence. If jury trial is not appropriate, then acting entirely independently as factfinder on the evidence received in this case, I make the same findings as did the jury in answering interrogatories 1 and 2A. Also, acting as factfinder but treating the jury verdict as advisory, I make the same findings. I have explained these findings in more detail in a separate memorandum filed on this date pursuant to Rule 52(a) of the Federal Rules of Civil Procedure. Thus, in all events, the questions submitted to the jury in interrogatories 1 and 2A are answered by the factfinder against the plaintiff Redgrave.

One further issue relevant to the civil rights claim is suggested by the testimony of one of BSO's trustees. That evidence would support a finding that one or more of BSO's trustees were concerned that the Redgrave-BSO performances would impair BSO's ability to raise funds from the public. On the basis of this evidence, a factfinder might have found that agents of BSO cancelled the performances because of a concern over fundraising. Redgrave chose not to advance this contention at trial, but instead argued that all of BSO's suggested motivations were pretexts for retaliation against Redgrave because of her support for the PLO. BSO also chose not to argue that the cancellation was grounded in concern over fundraising.

It is understandable that neither party chose to press this issue. On one hand, any claim that motivation concerned with fundraising for a charitable corporation should be treated in the law as invidious lacks support in precedent. Nor could such a motivation satisfy the requirement of "threats, intimidation or coercion" in support of a claim under the Massachusetts Civil Rights Act. On the other hand, any defense that interests in fundraising would justify protective rules in any way analogous to the protection guaranteed by the First and Fourteenth Amendments (discussed in Part III of this opinion) likewise lacks support. A motivation concerned with fundraising is neither specially forbidden as invidious nor specially protected by constitutional constraints. In any event, in view of the positions taken by the parties at trial, fundraising as a motivation or a justification is not now at issue in this case.

For the foregoing reasons, I conclude that judgment must be entered for the defendant on the claim under the Massachusetts Civil Rights Act. Thus, I need not and do not address defendant's other contentions that Redgrave could not maintain a civil rights action even if she proved the factual premises underlying her claim.

Judgment will be entered for BSO on the state civil rights claim.

II. BREACH OF CONTRACT CLAIM

The plaintiffs' contract claim depends on whether defendant's cancellation constituted a breach of the contract and, if so, what damages are recoverable for that breach. To set the context for determining the disputed issues of law bearing upon the claim for breach of contract, I take account of some relevant premises of the legal system.

A. PROTECTION OF FREEDOM IN THE LEGAL SYSTEM.

Protection of freedom is a prime objective of our legal system. Freedom of...