Redgrave v. Boston Symphony Orchestra, Inc.

• Decision Date: 21 January 1987
• Citation: 502 N.E.2d 1375,399 Mass. 93
• Parties: , 55 USLW 2442 Vanessa REDGRAVE & another 1 v. BOSTON SYMPHONY ORCHESTRA, INC.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1375

502 N.E.2d 1375

399 Mass. 93, 55 USLW 2442

Vanessa REDGRAVE & another ¹ v. BOSTON SYMPHONY ORCHESTRA, INC.

Supreme Judicial Court of Massachusetts,

Suffolk.

Argued May 7, 1986.

Decided Jan. 21, 1987.

Daniel J. Kornstein, New York City, for plaintiffs.

Robert E. Sullivan (John T. Harding, Jr., & Cheryl W. Heilman, Boston, with him), for defendant.

Diana T. Tanaka, Asst. Atty. Gen., Boston, for Atty. Gen., amicus curiae, submitted a brief.

Marc D. Stern, Lois Waldman & Ronald A. Krauss, New York City, Marvin N. Geller & Thomas M. Sobol, Boston, for American Jewish Congress, amicus curiae, submitted a brief.

Marjorie Heins, F. Anthony Mooney & Robert P. Sherman, Boston, for Lawyers' Committee for Civil Rights Under Law of the Boston Bar Ass'n & another, amici curiae, submitted a brief.

Before HENNESSEY, C.J., and WILKINS, LIACOS, ABRAMS, NOLAN, LYNCH and O'CONNOR, JJ.

HENNESSEY, Chief Justice.

The United States Court of Appeals for the First Circuit has certified two questions to this court. See S.J.C. Rule 1:03, as amended, 382 Mass. 700 (1981). The questions concern plaintiff Vanessa Redgrave's appeal from the denial of her motion for judgment notwithstanding the verdict by a judge of the United States District Court for the District of Massachusetts following a jury verdict favorable to the defendant Boston Symphony Orchestra, Inc. (BSO), on Redgrave's claims under the Massachusetts Civil Rights Act, G.L. c. 12, §§ 11H and 11I (1984 ed.). ² In reporting these questions, the Court of Appeals stated that a central issue in the plaintiff's appeal turns on a significant question of Massachusetts law on which no controlling precedent in the decisions of this court exists. Redgrave argued at trial and argues on appeal that the BSO should be held liable under the Massachusetts Civil Rights Act because, in cancelling its performances of Stravinsky's "Oedipus Rex," in which Redgrave was to appear as narrator, the BSO acquiesced in expressions of disapproval of her political views voiced by BSO subscribers and other members of the community. Further, she contends that other motives offered by the BSO as justification for its decision to cancel the performances should not operate as defenses under the Massachusetts Civil Rights Act.

We summarize the facts relevant to the questions certified. See S.J.C. Rule 1:03, § 3(2). In March, 1982, the BSO engaged the plaintiff, a professional actress, to appear as narrator in a series of performances of Stravinsky's "Oedipus Rex" in Boston and New York. Following announcement of the engagement, the BSO received calls from some of 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. This action was the subject of substantial attention and comment in the news media.

Redgrave and Vanessa Redgrave Enterprises, Ltd., sued the BSO for breach of contract. Redgrave also alleged violations of the Massachusetts Civil Rights Act. The plaintiffs also made several claims that were held before trial to lack merit as a matter of law. Redgrave v. Boston Symphony Orchestra, Inc., 602 F.Supp. 1189, 1191 (D.Mass.1985). See Redgrave v. Boston Symphony Orchestra, Inc., 557 F.Supp. 230 (D.Mass.1983). After a sixteen day trial, the jury answered special interrogatories favorably to the plaintiffs on the breach of contract claim and favorably to the BSO on the civil rights claim. The parties filed cross-motions for judgment notwithstanding the verdict. 602 F.Supp. at 1191. The Federal District Court judge denied Redgrave's motion and entered judgment for Redgrave on the breach of contract claim but held that, as a matter of law, damages were to be limited to the performance fee. Id.

In the order of certification, the Court of Appeals states that "BSO agents testified that the performances were cancelled because it was felt that potential disruptions, which BSO agents perceived as quite possible given the community reaction, would implicate the physical safety of the audience and players and would jeopardize the artistic integrity of the production. The district court found this testimony to be credible and worthy of substantial weight. Additionally, in response to special interrogatories, the jury found that BSO and its agents did not cancel the performances because of their own disagreement with Redgrave's political views. Redgrave v. BSO, 602 F.Supp. 1189, 1192 (D.Mass.1985)."

The Court of Appeals further states, "Redgrave contends that even if BSO agents did not themselves disagree with her political views and did not cancel the contract because they wished to punish her for past speech or repress her future speech, BSO cancelled the contract in response to pressure from third parties who did disagree with and wished to repress Redgrave's speech. Redgrave ... argue[s] that BSO's acquiescence to pressure from third parties made it liable under the Massachusetts Civil Rights Act, Mass.Gen.Laws Ann. c. 12, § 11H-I.... The district court concluded that '[a]lthough 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.' 602 F.Supp. at 1192. According to the court, '[n]either the cancellation nor the acquiescence unaccompanied by [express personal disagreement with Redgrave's views] amounts to "threats, intimidation, or coercion" which must be proved to establish a claim under the statute.' "

Because the existence of Redgrave's claim under the Massachusetts Civil Rights Act depends on the proper interpretation of the act, the Court of Appeals certified the following two questions to this court: "1. Under the Massachusetts Civil Rights Act, Mass.Gen.Laws Ann. ch. 12, § 11H and § 11I, may a defendant be held liable for interfering with the rights of another person, by 'threats, intimidation, or coercion', if the defendant 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 Massachusetts Civil Rights Act for acquiescence to third party pressure, is it a defense for the defendant to show that its actions were independently motivated by additional concerns, such as the threat of extensive economic loss, physical safety, or particular concerns affecting the defendant's course of business?" ³

1. The Meaning of the Two Certified Questions.

We answer the two certified questions in accordance with their clear and unequivocal wording. In doing so, 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.

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 Redgrave 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 exercising constitutional rights who interferes with another's constitutional rights is not (Question 1) "interfering with the rights of another person by 'threats, intimidation, or coercion,' " within the meaning of G.L. c. 12, §§ 11H and 11I. It can be further offered by way of defense to an action under §§ 11H and 11I (Question 2) that the defendant was motivated by the "additional concern[ ]" of the 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 defendant 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 constitutional right in interfering with the secured rights of another. In short, we answer the two questions as they are worded. 2. Acquiescence to Third Party Pressure as a Basis for Recovery Pursuant to G.L. c. 12, §§ 11H and 11I.

The Massachusetts Civil Rights Act provides a State remedy for interference or attempts to interfere with the exercise or enjoyment of rights secured by the Constitution or laws of the United States or rights secured by the Constitution or laws of the Commonwealth by threats, intimidation, or coercion. G.L. c. 12, § 11H. ⁴ Section 11I ⁵ authorizes a private cause of action for the deprivation of secured rights and an award of attorneys' fees for the prevailing party. See Batchelder v. Allied Stores Corp., 393 Mass. 819, 820 n. 2, 473 N.E.2d 1128 (1985) (Batchelder II ). The remedy provided in §§ 11H and 11I is coextensive with the remedy provided under 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. G.L. c. 12, § 11H. Bell v. Mazza, 394 Mass. 176, 181, 474 N.E.2d 1111 (1985).

Our function in interpreting any statute is to ascertain "the...