Vanessa Redgrave and Vanessa Redgrave Enterprises, Ltd. v. Boston Symphony Orchestra, Inc., Vanessa Redgrave and Vanessa Redgrave Enterprises, Ltd. v. Boston Symphony Orchestra, Inc.

This complex litigation has involved this court at three stages. On first hearing the appeal from the district court we certified two questions to the Supreme Judicial Court of Massachusetts. After considering its responses, together with its suggestions on an issue not expressly raised by either question, a panel of this court agreed on the disposition of issues relating to plaintiffs' contract claim but divided as to the disposition of a claim under the Massachusetts Civil Rights Act (MCRA), Mass.Gen.L. ch. 12, Secs. 11H--I (1986). Subsequently, the panel opinion and dissent were withdrawn in order to reconsider the MCRA claim in an en banc proceeding. We now proceed with our en banc opinion, which includes and reaffirms the panel's position on the contract claim, but differs from the panel majority by concluding that, as a matter of Massachusetts law, defendant is not subject to MCRA liability.

The plaintiffs, actress Vanessa Redgrave and Vanessa Redgrave Enterprises, Ltd. (hereinafter Redgrave), brought suit against the Boston Symphony Orchestra (hereinafter the BSO) for cancelling a contract for Redgrave's appearance as narrator in a performance of Stravinsky's "Oedipus Rex." The cancellation occurred in the wake of protests over Redgrave's participation because of her support of the Palestine Liberation Organization. She sought recovery both for breach of contract and for violation of her civil rights under the MCRA.1

A jury awarded Redgrave $100,000 in consequential damages caused by the BSO's breach of contract; sitting in an advisory capacity on Redgrave's MCRA claim, the jury found for the BSO. On the BSO's motion for judgment notwithstanding the verdict on the consequential damages issue, the district court held that the evidence of consequential damages was sufficient but that Redgrave could not recover these damages because of First Amendment limitations. The court also held that the MCRA does not impose liability on a party for acquiescence to third party pressure. Redgrave appealed from these rulings, and the BSO cross-appealed, arguing that the evidence of consequential damages was insufficient.

We conclude, in Part II, that the district court erred in reversing the jury's award of consequential damages, but that Redgrave has presented sufficient evidence to prove only $12,000 in consequential damages, minus certain expenses. In Part III, we report and accept the response of the Massachusetts Supreme Judicial Court to our certified questions that acquiescence to third party pressure is not a defense to an action under the MCRA. In Part IV, we discuss the conclusions of the Justices of the Supreme Judicial Court that, for different but consistent reasons of Massachusetts law, the BSO is not subject to MCRA liability in these circumstances. We therefore affirm the judgment for the BSO on the MCRA claim and remand for entry of a reduced judgment for consequential damages on the contract claim.

In March 1982, the Boston Symphony Orchestra (BSO) engaged Vanessa Redgrave to narrate Stravinsky's "Oedipus Rex" in a series of concerts in Boston and New York. Following announcement of the engagement, the BSO received calls from its subscribers and from community members protesting the engagement because of Redgrave's political support for the Palestine Liberation Organization and because of her views regarding the state of Israel. On or about April 1, 1982, the BSO cancelled its contract with Redgrave and its performances of "Oedipus Rex."

Redgrave sued the BSO for breach of contract and for violation of the MCRA. The BSO argued at trial that the contract rightfully was cancelled because the cancellation was the result of "a cause or causes beyond the reasonable control" of the BSO. In response to the civil rights claim, BSO agents testified that they had not cancelled the performances in order to punish Redgrave for her past speech or repress her future speech, but because it was felt that potential disruptions, given the community reaction, would implicate the physical safety of the audience and players and would detract from the artistic qualities of the production.

Following a sixteen-day trial, the jury found that the BSO wrongfully had breached its contract with Redgrave. On that basis, the district court awarded Redgrave her stipulated performance fee of $27,500. The jury also found that the BSO's cancellation had damaged Redgrave's career by causing loss of future professional opportunities, and awarded Redgrave $100,000 in consequential damages. The district court found that the question whether there was sufficient evidence to support a finding of $100,000 in consequential damages was a "close and debatable" one, but concluded that there was sufficient evidence to support the award. Nevertheless, the district court overturned the grant of consequential damages,2 finding that a First Amendment right of freedom of speech was implicated by the theory of consequential damages advanced by Redgrave and that Redgrave had not met the strict standards required by the First Amendment for recovery of damages. Redgrave v. Boston Symphony Orchestra, Inc., 602 F.Supp. 1189, 1193-1203 (D.Mass.1985).

Redgrave's MCRA claim was premised on the allegation that the BSO had interfered, "by threats, intimidation, or coercion," with Redgrave's exercise of free speech rights. Mass.Gen.L. ch. 12, Secs. 11H--I. The district court utilized the jury in an advisory capacity on this claim. In response to special interrogatories, the jury found that the BSO did not cancel the contract because of the disagreements of BSO agents with Redgrave's political views. The district court stated that this finding eliminated an "essential factual premise" of Redgrave's primary claim based on the MCRA. 602 F.Supp. at 1192.

But Redgrave also argued that, even if BSO agents had not themselves disagreed with Redgrave's political views and did not cancel the contract because they wished to punish her for past speech or to repress her future speech, the BSO did cancel the contract in response to pressure from third parties who disagreed with and wished to repress Redgrave's speech. Redgrave contended that such acquiescence to third parties on the part of the BSO made it liable under the MCRA. The district court concluded that acquiescence unaccompanied by express personal disagreement with Redgrave's views could not amount to the "threats, intimidation, or coercion" needed to establish a claim under the MCRA. 602 F.Supp. at 1192. The district court, therefore, rejected Redgrave's acquiescence theory and entered judgment for the BSO on Redgrave's MCRA claim.

Redgrave appealed from the district court's entry of judgment notwithstanding the verdict on the consequential damages claim and from the judgment against her on the MCRA claim. The BSO cross-appealed, arguing that even if the First Amendment should be found inapplicable to the consequential damages claim, the evidence of those damages was insufficient to support the verdict.

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 caused consequential harm to Redgrave's professional career and that this harm was a foreseeable consequence within the contemplation of the parties at the time they entered the contract. 602 F.Supp. at 1204. A threshold question is whether Massachusetts contract law allows the award of such consequential damages for harm to a claimant's professional career.

Redgrave's consequential damages claim is based on the proposition that a significant number of movie and theater offers that she would ordinarily have received in the years 1982 and following were in fact not offered to her as a result of the BSO's cancellation in April 1982. The BSO characterizes this claim as one for damage to Redgrave's reputation,3 and argues that the recent Massachusetts state court decisions in McCone v. New England Telephone & Telegraph Co., 393 Mass. 231, 471 N.E.2d 47 (1984), and Daley v. Town of West Brookfield, 19 Mass.App.Ct. 1019, 476 N.E.2d 980 (1985), establish that Massachusetts law does not permit plaintiffs in breach of contract actions to recover consequential damages for harm to 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 second factor that courts identify is that damages for injury to reputation "cannot reasonably be presumed to have been within the contemplation of the parties when they entered into the contract." Skagway City School Board, 543 P.2d at 225. These courts state that the basic rule of Hadley v. Baxendale, 9 Ex. 341, 156 Eng.Rep. 145 (1854), which requires that contract damages be of the kind that arise naturally from the breach of a contract or be of a kind that reasonably may have been in the contemplation of the parties when they entered the contract, cannot possibly be met in a claim for general damages to reputation occurring as the result of a breach of contract. See Skagway City School Board, 543 P.2d at 225; O'Leary, 533 F.Supp. at 1209-10; Tousley, 50 A.2d at 474-75; Mastoras v. Chicago, M. & St. P.R.R., 217 F. 153, 154 (W.D.Wash.1914). The Massachusetts Supreme Judicial Court seems to have accepted this rationale as a legitimate one for disallowing claims for injury to reputation as a contract damage. See Daley v. Town of West Brookfield, 476 N.E.2d at 980 n. 1 ("The rationale often given [for disallowing damages for injury to reputation in contract actions] is that such damages are remote and not within the contemplation of the parties."). See also 5 Corbin on Contracts, Sec. 1007-11 at 70-87 (1964); 11 Williston, Contracts, Sec. 1344 at 226-29 (1968) (discussing Hadley v. Baxendale general rule of consequential damages).

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.

Although we find that Redgrave did not present sufficient evidence to establish that the BSO's cancellation caused consequential harm to her professional career in the amount of $100,000, see infra at 896-900, we hold that, as a matter of Massachusetts contract law, a plaintiff may receive consequential damages if the plaintiff proves with sufficient evidence that a breach of contract proximately caused the loss of identifiable professional opportunities. This type of claim is sufficiently different from a nonspecific allegation of damage to reputation that it appropriately falls outside the general rule that reputation damages are not an acceptable form of contract damage.

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.4 As BSO agents testified, the press release announcing the BSO's cancellation went through a number of drafts in order to remove any statement or implication that Redgrave was too controversial or dangerous to hire. In fact, the press release did not even refer to Redgrave by name.5 Indeed, in response to special verdict question 11A, the jury found that the BSO's cancellation and press release did not "impliedly state to others that BSO's managerial agents held the opinion that Vanessa Redgrave was so controversial because of her publicly expressed political views that the risks associated with the series of performances in Boston and New York, in which she was to appear as narrator, were too great to be acceptable to a prudently managed symphony orchestra." 602 F.Supp. at 1205. Thus, the evidence does not support an inference that the BSO intended its cancellation to act as a symbolic message to others.

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 derived, or feared that their supporters might derive, some message from the cancellation, causing them concern about hiring Redgrave. Under this theory, the jury could have found that the act of cancellation, unprotected by the First Amendment, was the proximate cause of Redgrave's harm.

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.

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, Sec. 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 uncontradicted 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 a finding of damages greater than $12,000, less expenses.

Most of Redgrave's annual earnings prior to April 1982 were derived from appearances in films and the English theater.6 Redgrave presented evidence at trial that she earned more than $200,000 on the average since her company's fiscal year 1976, and she testified that she had a constant stream of offers from which she could choose films that had secure financial backing. After the BSO's cancellation in April 1982, Redgrave contended, her career underwent a "startling turnabout." Redgrave testified that she did not work at all for the fourteen months following the cancellation and that the only offers she received during that time were for films with insufficient financial backing.

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 prior 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.7 Because of that commitment, Redgrave turned down other firm offers that had secure financial backing. These included an offer received in July 1982 to do a cameo appearance in a Monty Python film entitled Yellowbeard for $10,000 and an offer received in September 1982 to star in the television film Who Will Love My Children? for $150,000. In late October or early November 1982, Redgrave was informed that Annie's Coming Out would not be produced because of financial difficulties. No evidence was presented that the film's financial failure was related to the BSO cancellation.

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 $70,000.8 In June or July of 1983, Redgrave was informed that No Alternatives would not be filmed because of financial difficulties. Redgrave received $25,000 as a forfeiture on the contract.

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 ca