DocketNumber： Nos. 85-1305, 85-1341
Citation Numbers： 855 F.2d 888
Judges： Bownes, Breyer, Coffin, Selya, Torruella
Filed Date： 8/31/1988
Status： Precedential
Modified Date： 11/27/2022
OPINION EN BANC
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). Subsequently, the panel opinion and dissent were withdrawn in order to reconsider the MCRA claim in an en banc proceeding.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.
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
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,
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, §§ 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
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
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,
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 reputations, 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 reputation and other emotional injury could not be sustained in the suit because “these additional damages are not contract damages.” Id. In Daley v. Town of West Brookfield, a Massachusetts 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 virtually all other jurisdictions in holding that damages for reputation 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. Sterling 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 contract claim for reputation damages, courts have identified two determinative factors. First, courts have observed that attempting 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 distress 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 the causal connection between the breach of contract and the injury to reputation and the amount by which any future earnings would be decreased by causes other than the breach. Skagway City School Board, 543 P.2d at 225.
The claim advanced by Redgrave is significantly different, however, from a general claim of damage to reputation. Redgrave is not claiming that her general reputation as a professional 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 appropriate 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, 21; 95 N.E. 961, 964 (1911) (in breach of contract ation, injured party receives compensation for any loss that follows as a natural consequence from the breach, was within the contemplation 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 Redgrave after termination of the BSO contract because of that termination (that loss of the other employment “followed 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 damages are rationally calculable, then plaintiffs may be entitled 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 will 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 determine 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 determined that “harm would not have occurred but for the cancellation 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.” Id. at 1212. In response to special interrogatories, the jury found that the BSO’s cancellation caused consequential harm to Redgrave’s career and that the harm was a foreseeable consequence within the contemplation of the parties. 602 F.Supp. at 1204.
B. First Amendment Restrictions
The district court found that, although consequential damages 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 damages. According to the district court, the only theory that Redgrave could advance for establishing consequential damages necessarily implicated First Amendment concerns. As the court explained, “the only possible mechanism of harm to Redgrave’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 connection between BSO’s cancellation and consequential harm to Redgrave’s professional career” was for “a factfinder reasonably [to] infer that others, upon receiving the news of BSO’s cancellation, interpreted the cancellation as conveying a message about Redgrave.” Id.
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 damages. 602 F.Supp. at 1199. The court then applied the standard governing damages in defamation cases. Accordingly, it required that Redgrave show that “BSO has impliedly communicated 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 material 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. Id. 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 protected form of First Amendment activity. See, e.g., NAACP v. Claiborne Hardware Co., 458 U.S. 886, 102 S.Ct. 3409, 73 L.Ed.2d 1215 (1982) (economic boycott may be form of First Amendment activity); Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976) (contributing money is form of speech); Cohen v. California, 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed.2d 284 (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.
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 necessarily involved protected expression by the BSO.
Redgrave’s counsel presented two distinct avenues of causation through which the jury could find that the BSO’s cancellation 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 performances in which Vanessa Redgrave was to appear would tend to influence others not to offer her future professional opportunities.” Redgrave v. BSO, 602 F.Supp. at 1212. The jury was instructed to “determine whether the evidence supports either, both, or neither of these contentions” in deciding whether the BSO’s cancellation caused Redgrave consequential harm. Id.
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, terminated Ms. Redgrave’s contract. This had a—this is the premier or one of the premier arts organizations in America who, like ourselves, seeks support from foundations, corporations, 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 de
The district court correctly stated that “plaintiffs must prove that in some way information about BSO’s action was communicated to others.” 602 F.Supp. at 1197. However, as amici correctly point out, the trial court erred in confusing communication 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 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 896-97, 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 Hetherington & 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 (1st Cir.1978) (quoting Dumas v. MacLean, 404 F.2d 1062, 1064 (1st Cir.1968)). In examining the evidence, however, we must not neglect un-contradicted evidence offered by the other party. Layne v. Vinzant, 657 F.2d 468, 472 (1st 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 conjecture and speculation.” Carlson v. American Safety Equipment Corp., 528 F.2d 384, 386 (1st 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 sufficient facts for a jury reasonably to infer that Redgrave lost wages and professional opportunities subsequent to April 1982, that such losses were the result of the BSO’s cancellation rather than the result of other, independent factors, and that damages for such losses are capable of being ascertained “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 Redgrave $100,000 in consequential damages. We find that the evidence presented by Redgrave was not sufficient to support
Most of Redgrave’s annual earnings pri- or to April 1982 were derived from appearances in films and the English theater.
The evidence demonstrates that Redgrave accepted three firm film offers in the fourteen months following the BSO cancellation. 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 Redgrave had expressed interest in February 1982, two months pri- or to the BSO cancellation. The offer for the role was made in July 1982, a short time after the BSO’s cancellation, and was 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 Annie’s Coming Out sometime during the fall.
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 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 failures 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 successful financial year following the BSO cancellation, we cannot 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
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.
We have some doubt as to whether Redgrave presented sufficient evidence to prove that the type of film offers she received in the year following the BSO cancellation were radically different 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 “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 comparison between the type of film offers received before and after the BSO cancellation and we are left primarily with Redgrave’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 producers 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.
Redgrave also claims that the BSO’s cancellation caused a drop in her offers to perform on Broadway. Bruce Savan, Redgrave’s agent, testified regarding all offers to perform in American 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 preceding 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 testified 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 producers or others as to why the production did not go to Broadway. 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 testimony from the producers or others as to why the production did not materialize. In addition, Redgrave testified that Lillian Heilman had wished Redgrave to portray Heilman in a theater production on Broadway, but that Heilman was concerned about the BSO incident. Finally, Redgrave testified that Theodore 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.
Theodore Mann was the one producer who testified regarding his decision not to employ Redgrave in a Broadway production. He explained that
the Boston Symphony Orchestra had can-celled, terminated Ms. Redgrave’s contract. This had a — this is the premier or one of the premier arts organizations in America who, like ourselves, seeks support from foundations, corporations, 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 [Redgrave] because of all the events that had happened, the cancellation 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 testimony, is not sufficient to support a finding of consequential damages.
In addition, we note that it would be difficult for any assessment 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 239-40. 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 evidence 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 factfind-ers could draw conflicting inferences and upon which a reasonably 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 support from foundations and subscribers, having difficulty selling tickets, and dealing with possible physical disruptions. These are factors that result from the community response to Redgrave’s political views. They are. the same factors that apparently 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.
Mann also testified, however, that he and his partners were affected by the BSO cancellation because the BSO was a premier 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 “premier 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 sufficient 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.
III. 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
A. The Nature of the Claim
The MCRA creates a private cause of action for injunctive and other equitable relief, including damages, 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.L. ch. 12, §§ 11H—I (1986). A right is “secured” against private parties under the MCRA even though the constitutional provision from which it emanates applies only to government 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 rights 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
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 disagreed 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 precise 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 audience 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 audience could concentrate, rather than an atmosphere influenced by shouting, booing, and the presence of uniformed police. Earlier in the case, the district
C. Our Certified Questions and the Answers
Because we felt that Redgrave’s MCRA claim turned on a significant 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 follows:
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 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?
The Supreme Judicial Court answered “Yes” to the first question. It held:
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, 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. 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 question.
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, 104 S.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 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, 89 S.Ct. 1827, 1829, 23 L.Ed.2d 430 [1969]), but the certified question raises no such premise. Our*903 answer to the second certified question is, “No.”
399 Mass. at 101, 502 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 dissenting colleagues insist, that we must now confront the BSO’s additional argument for affirmance — that the First Amendment protects it from MCRA liability. The response of the SJC, however, significantly expanded upon and went beyond the 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 technically may fall under the heading of dicta, they are so deliberate, so unanimously expressed, and involve such a basic proposition, thht we feel constrained to listen carefully. The certification 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 definitive ruling by the highest state court, a federal court may consider ‘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 (1st Cir.1981) (quoting McKenna v. Ortho Pharmaceutical Corp., 622 F.2d 657, 663 (3d Cir.1980)).
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 development of its law's. 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, Interjurisdictional Certification and Choice of Law, 41 Vand.L.Rev. 411, 426 (1988). See also Martinez v. Rodriquez, 394 F.2d 156, 159 n. 6 (5th Cir.1968) (form of certified 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 restatement of the issue or issues and the manner in which the answers are to be given, whether as a comprehensive whole or in subordinate or even contingent parts”) (emphasis supplied); St. Paul 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
A. A Conflict of Rights
The MCRA is an unusual statute, a civil rights law that abolishes 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, 502 N.E.2d 1375. 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 the issue is the plaintiffs “right” to free speech, the analogy is strained.
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 defendant’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 “coercing” other speech.
We have grave concerns about the implications of such a conflict. If constitutional protections are effectively to protect private 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 newspaper, 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) disagrees, 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” platform (or guarantee that they will not be coerced by what the newspaper decides to write or not to write) itself risks interfering with the newspaper’s editorial freedom. The freedom of mediating institutions, newspapers, universities, political associations, 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 meaningful. The courts, noting that free speech guarantees protect citizens 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.
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, 101 S.Ct. 2176, 2180-81, 68 L.Ed.2d 671 (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., Lumley 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, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943) (invalidating a compulsory flag sa
Redgrave conceded at oral argument, and presumably the dissent would not disagree, that persons picketing a Redgrave 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 reason that we have always tolerated and encouraged private expression, rather than state compulsion, as the antidote to private speech with which we disagree. We see no reason why less protection should be provided where the artist refuses to perform; 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 cancellation as the means of doing so. That this may have had a residual effect of coercing Redgrave’s exercise of her speech should not mean that the cancellation is any less protected than expression intended to coerce such exercise.
We raise these points not to resolve the constitutional questions, 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 Legislature 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 universities, or the aesthetic judgments of artists. To be more specific, 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 statute does not impose liability upon the BSO in the circumstances of this case.
We therefore present 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. e. 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 111. It can be further offered by way of defense to an action under §§ 11H and 111 (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.
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 disregard these matters in supplying yes-or-no answers to the questions in the form we had posed them, we do not read his comments as mere speculation. On the contrary, the Chief Justice 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 constitutional defense might be offered to deny liability. The Chief Justice’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 constitutional 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 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 concluded that, if the nonconstitutional grounds indicated by its questions are not dispositive of Redgrave’s claim, First Amendment con*908 siderations will be and that, therefore, it need not ask us about analogous State constitutional considerations.
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 rights22 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 minority groups, and more specifically, to deal with racial violence.” 399 Mass. at 105, 502 N.E.2d at 1382. The dissenters concluded that “[rjacial discrimination and violence involve conduct that is specifically designed to interfere with secured rights, and it is that kind of conduct that the Legislature made the basis of civil liability.” Id. 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. Therefore, they concluded, unintentional interference with secured rights would not constitute interference by “threats, intimidation or coercion,” as required by the statute. This abstract conclusion 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 can-celled, but the conveyance of that message did not amount to threat or intimidation 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 “[m]ere cancellation of the performances would not appear to convey the message that the BSO intended to take any future action.” Id. Thus, there would be no threat or intimidation. This statutory construction, 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 specifically 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 certified 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 § 111 as imposing liability only on a defendant who specifically intends to interfere with another’s secured rights.
399 Mass. at 106, 502 N.E.2d at 1382. Justice O’Connor reasoned that “ ‘It is our
C. Making Sense of the Supreme Judicial Court’s Opinions
There 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 liability in the first instance. These two grounds are separate and not inconsistent. Because a majority of the SJC would foreclose liability 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 perform. 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 “coercion” only on the abstract assumption that constitutional concerns 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. 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 plaintiffs free speech rather than equal protection rights, we think it clear that the plurality (and the concurring 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 conclusion that it is unconstitutional but also grave doubts upon that score.’ ” Loriol v. Keene, 343 Mass. 358, 363, 179 N.E.2d 223 (1961) (quoting United States v. Jim Fuey Moy, 241 U.S. 394, 401, 36 S.Ct. 658, 659, 60 L.Ed. 1061 (1916)) (emphasis supplied). See also Frisby v. Schultz, — U.S. -, 108 S.Ct. 2495, 2501, 101 L.Ed.2d 420 (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, 439 N.E.2d 741 (1982); Baird v. Attorney General, 371 Mass. 741, 745, 360 N.E.2d 228 (1977); Board of Appeals of Hanover v. Housing Appeals Comm., 363 Mass. 339, 364, 294 N.E.2d 393 (1973); Opinions of the Justices to the Governor, 361 Mass. 897, 901, 282 N.E.2d 629 (1972); Worchester Cnty. Nat’l Bank v. Commissioner of Banks, 340 Mass. 695, 701, 166 N.E.2d 551 (1960); Ferguson v. Commissioner of Corporations and Taxation, 316 Mass. 318, 322-24, 55 N.E.2d 618 (1944); Kennedy v. Commissioner of Corporations and Taxation,
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 traditional presumption and construe the statute so as not to implicate 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 constitutional defense also bars liability. It cannot seriously be contended 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, théy declared the existence of the right to refrain from performing with such certainty 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 concurrence and the dissent (each of which, we believe, would be adopted by a majority of the court), do in fact arise from consideration of state, rather than federal, law. The dissenting justices’ 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 performance could not constitute “interfere[nce] by threats, intimidation 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 constitutional defense to MCRA liability is virtually the same as, and indistinguishable from, a ruling that the BSO has a federal constitutional defense.” Infra at 917. We note that Justice Wilkins is himself the author of a careful and scholarly study of the relationship 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 Constitution, 14 Suffolk U.L.Rev. 887 (1980). In that article he discusses 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 circumstances 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
Nor does Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (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 erosion 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, 103 S.Ct. at 3476. This prerequisite is not met here. Similarly in the next passage quoted by the dissent: there is federal jurisdiction to hear the federal claim “when it fairly appears that the state court rested its decision primarily on federal law.” Id. at 1042, 103 S.Ct. at 3477. 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 explictly makes reference to state constitutional law as the adequate 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 such a strange fact situation and with such an unusual state statute. It 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 obligation 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
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 judgment on the contract claim is VACATED and REMANDED for entry of judgment for consequential damages to the extent approved herein. No costs.
. Redgrave Enterprises Ltd. was a plaintiff only as to the contract claim; it did not join the MCRA claim.
. 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.
. 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.”
. We are not convinced that the cancellation of a contract could ever receive First Amendment protection. Unlike engaging in an economic boycott, burning a draft card, or wearing an
. 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.
. Although Redgrave received a number of offers to appear in Broadway 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.
. 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.
.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.
. In fact, Redgrave expressed an interest in filming Annie’s Coming Out in February 1982, two months before the BSO cancellation.
. We assume that Redgrave's claim must refer primarily to offers made after November 1982, when she learned that Annie's 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.
.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.
. 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 contrast to various film offers and inquiries that she did receive throughout 1982. On the other hand, Redgrave failed to present evidence of any Broadway offers made to her in 1981, weakening her assertion that a dramatic decline in such offers occurred subsequent to April 1982.
. 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.
. "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.
. 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 consult upon the common good; give instructions to their representatives, and to request of the legislative body, by the way of addresses, petitions, or remonstrances, redress of the wrongs done them, and of the grievances they suffer.”
. Cf. Carpenters v. Scott, 463 U.S. 825, 831-33, 103 S.Ct. 3352, 3357-59, 77 L.Ed.2d 1049 (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”).
. 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 ver-sa) in order to further its expressive interests. Unlike the case in Palmore v. Sidoti, 466 U.S. 429, 104 S.Ct. 1879, 80 L.Ed.2d 421 (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,
Finally, we note that, even if an artistic organization could not dbcriminate 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 protected interests conflict—where there is a clash of rights. We express no view as to how, in particular cases, that clash might be resolved.
. 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.
. 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 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.
. Cf. Brown v. Louisiana, 383 U.S. 131, 141-42, 86 S.Ct. 719, 723-24, 15 L.Ed.2d 637 (1966) (plurality opinion) (holding that First Amendment rights "are not confined to verbal expression” but may also include "protest by silent and reproachful presence_”).
. 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 politically 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 people 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.
. 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 governmental 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.
. 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 909-10. 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 federal 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.