Redgrave v. Boston Symphony Orchestra, Inc.

Hennessey, C.J.

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 appearing in 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.

*95We 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).”

*96The 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 ‘[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.’ 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

*971. 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.

*982. 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 11I5 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 (1985) (Batchelder II). The remedy provided in §§ 11H and 111 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 (1985).

Our function in interpreting any statute is to ascertain “the intent of the Legislature, as evidenced by the language used, and considering the purposes and remedies intended to be ad*99vanced.” Glasser v. Director of the Div. of Employment Sec., 393 Mass. 574, 577 (1984). Commonwealth v. Galvin, 388 Mass. 326, 328 (1983). Commonwealth v. Graham, 388 Mass. 115, 119 (1983). Like all civil rights statutes, §§ 11H and 11I are entitled to liberal construction. Batchelder II, supra at 822. 3A C. Sands, Sutherland Statutory Construction § 74.05, at 650 (4th ed. 1986). Accordingly, cases within the reason, although not within the letter, of a remedial statute are embraced by its provisions. Batchelder II, supra. 2A C. Sands, Sutherland Statutory Construction § 54.04, at 570 (4th ed. 1984).

To determine whether actions taken in the face of pressure from third parties violate §§ 11H and 11I, we first examine the statutory language. The statute imposes no express or implied requirement that an actor specifically intend to deprive a person of a secured right in order to be liable under the statute. Nor does the language of the statute admit of any express or implied exemption for conduct undertaken in response to third-party pressure. As we have said, the remedy provided in §§ 11H and 11I was intended to be coextensive with the remedy in 42 U.S.C. § 1983 (1982), except for the State action requirement. Batchelder II, supra at 822-823. Bell v. Mazza, supra at 181-182. In interpreting § 1983, the United States Supreme Court has held that specific intent is not a prerequisite to a violation of § 1983. In the case of Monroe v. Pape, 365 U.S. 167 (1961), the Supreme Court held that the absence of the term “wilfully” in § 1983 indicated that § 1983 requires only the degree of intent “that makes a [person] responsible for the natural consequences of his actions.” Id. at 187. More recently, the Supreme Court has reiterated its conclusion in the Monroe v. Pape case in holding that § 1983 creates a civil remedy and “contains no state-of-mind requirement independent of that necessary to state a violation of the underlying constitutional right.” Daniels v. Williams, 474 U.S. 327, 330 (1986). Parratt v. Taylor, 451 U.S. 527, 534-535 (1981).

Similarly, c. 12, §§ 11H and 11I, contain no state of mind prerequisite for recovery. Like § 1983, c. 12, §§ 11H and 11I, do not require that the defendant’s action be wilful. General *100Laws c. 265, § 37, on the other hand, which provides for criminal penalties in cases of civil rights violations, and was enacted at the same time as the “civil” counterpart in §§ 11H and 11I, requires that the defendant’s action be wilful.6 In Batchelder II, supra, a security guard was merely enforcing a general rule of the defendant shopping center against distribution of materials and solicitation. It was not shown that there was any specific opposition to the message Batchelder was attempting to spread. We think our reasoning in that case supports a conclusion that the statute’s coercion requirement was satisfied simply because the natural effect of the defendant’s action was to coerce Batchelder in the exercise of his rights. Id. at 823.

Making an exemption for civil rights deprivations resulting from third-party pressure “would reward and encourage” the very conduct which the substantive statutes prohibit. See Sarni Original Dry Cleaners, Inc. v. Cooke, 388 Mass. 611, 618 n.7 (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. Thus, to be effective, the provisions of §§ 11H and 11I 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 question.

3. Availability of Defenses Under the Massachusetts Civil Rights Act when Liability is Based on Acquiescence to Third-party Pressure.

The second question certified to us asks us to consider whether it is a defense to liability for acquiescence to third-party *101pressure “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.”

As an abstract proposition, fear of business disruption, fear for economic loss, or fear for physical safety are not justifications under §§ 11H and 11I. 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 (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 (1917). We recognize 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 [1969]), but the certified question raises no such premise. Our answer to the second certified question is, “No.”

4. Conclusion.

We answer, “Yes” to the first certified question, and “No” to the second certified question.

Vanessa Redgrave and Vanessa Redgrave Enterprises, Ltd., sued the Boston Symphony Orchestra, Inc., for breach of contract and violation of the Massachusetts Civil Rights Act. The contract claim was made on behalf of both parties, but the claim under the State civil rights act was asserted only by Redgrave. See Redgrave v. Boston Symphony Orchestra, Inc., 602 F. Supp. 1189, 1191 (D. Mass. 1985).

We acknowledge the briefs amici curiae filed by the Attorney General of the Commonwealth, the Lawyers’ Committee for Civil Rights Under Law of the Boston Bar Association and the Civil Liberties Union of Massachusetts, and the American Jewish Congress.

Section 11H provides: “Whenever any person or persons, whether or not acting under color of law, 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, the attorney general may bring a civil action for injunctive or other appropriate equitable relief in order to protect the peaceable exercise or enjoyment of the right or rights secured. Said civil action shall be brought in the name of the commonwealth and shall be instituted either in the superior court for the county in which the conduct complained of occurred or in the superior court for the county in which the person whose conduct complained of resides or has his principal place of business.”

Section 11I provides: “Any person whose exercise or enjoyment of rights secured by the constitution or laws of the United States, or of rights secured by the constitution or laws of the commonwealth, has been interfered with, or attempted to be interfered with, as described in section 11H, may institute and prosecute in his own name and on his own behalf a civil action for injunctive and other appropriate equitable relief as provided for in said section, including the award of compensatory money damages. Any aggrieved person or persons who prevail in an action authorized by this section shall be entitled to an award of the costs of the litigation and reasonable attorneys’ fees in an amount to be fixed by the court.”

In pertinent part, G. L. c. 265, § 37 (1984 ed.), reads as follows: “No person, whether or not acting under color of law, shall by force or threat of force, willfully injure, intimidate or interfere with . . . any other person in the free exercise or enjoyment of any right. . .” (emphasis added).