[454] in Discussion of MIT-community interests
Re: free speech, Mass Civil Rights Act...
daemon@ATHENA.MIT.EDU (J. Paul Kirby)
Wed May 2 03:48:57 2001
Message-ID: <3AEFBC01.CC11CE81@alum.mit.edu>
Date: Wed, 02 May 2001 03:49:21 -0400
From: "J. Paul Kirby" <jpk@alum.mit.edu>
MIME-Version: 1.0
To: Aram Harrow <aram@mit.edu>
CC: mit-talk@mit.edu, yegg@alum.mit.edu, alsmith@mit.edu, ifc-talk@mit.edu
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Hi there,
Aram Harrow wrote:
> 1. the first amendment begins with the phrase "Congress shall make no
> law..." * * * * actors that this does _not_ prevent from
> restricting your speech include: corporations, private universities
> and fellow members of mailing lists.
In the fair Commonwealth of Massachusetts, there is a limited way around
this. The Massachusetts Civil Rights Act, MGL c. 12, s. 11H, enacted amid
racial violence in Massachusetts in 1979, holds a private actor to a public
actor Constitutional standard in certain circumstances. It has seen a fair
amount of action around public and private universities in Massachusetts,
some cases winning, some losing.
Essentially, if a private (or public, for that matter) actor denies your
constitutional (or statutory) rights through "threats, intimidation or
coercion," you may sue under the MCRA and hold them civilly liable, including
seeking injunctive relief (making them do something or stop doing
something). This could be a garden-variety hate crimes civil rights statute,
except that the conduct doesn't have to involve actual harm, only the threat
of it, the harm doesn't have to be terribly severe, and it doesn't have to
involve discrimination along "suspect classes" like race, gender, sexual
orientation, age etc.
The MCRA states:
Whenever any person or persons, whether or not acting under color
of law, interfere by threats, intimidation or coercion, or attempt to
interfere
by threats, intimidation or coercion, with the exercise or enjoyment by
any
other person or persons of rights secured by the constitution or laws of
the
United States, or of rights secured by the constitution or laws of the
commonwealth, the attorney general may bring a civil action for
injunctive or
other appropriate equitable relief in order to protect the peaceable
exercise
or enjoyment of the right or rights secured.
(A further statute allows a private actor to file suit, rather than rely on
the attorney general.)
For some history--
"In 1979, the Massachusetts legislature reacted to a series of violent acts
by whites against blacks. The violence included shootings, firebombing,
stoning, beating, and assailing of blacks by whites and, more specifically,
the Ku Klux Klan. The acts of violence against blacks culminated in the
shooting of a black high school student on a field at Charleston High School
in September, 1979.
In order to combat the racially motivated violence, the Massachusetts
legislature enacted an unprecedented civil rights statute imposing
constitutional liability on a private actor, dropping the 'state action'
requirement. * * * * Thus, the Massachusetts statute broadens the universe
of potential defendants in civil rights cases to include private as well as
public actors."
However, the Supreme Judicial Court is still going back and forth on how far
it should be taken. The most murky area is what constitutes "threats,
coercion, or intimidation," and particularly whether it requires a threat of
*physical* harm. It seems to agree that:
Under the MCRA, a threat involves the intentional exertion of pressure to
make another fearful or apprehensive of injury or harm. Intimidation
involves
putting in fear for the purpose of compelling or deterring conduct.
Coercion
is the application to another of such force, either physical or moral, as
to
constrain him to do against his will something he would not otherwise
have
done. There must also be evidence of actual or potential physical
confrontations involving a threat of harm...
but the Appeals Court tries to reconcile that with a contrary case, Redgrave
v. BSO, by saying that:
...the confrontation may involve third persons and the threat of harm
need
not be directed at the plaintiff. See Redgrave v. Boston Symphony
Orchestra
* * * (potential physical harm to audience and orchestra members by third
persons protesting plaintiff's political views is a confrontation within
the MCRA).
The Redgrave case was interesting. Vanessa Redgrave was going to to narrate
Stravinsky's "Oedipus Rex" in a series of
concerts, but people protested over her support of the PLO, and BSO cancelled
on her. She sued, claiming it ran afoul of the 1st amendment. The court
agreed, although it's still a little questionable whether it would today.
The "physical" harm threatened need not be life-threatening or violent, but
it does need to be made toward a specific person or specific group of people.
In one successful case, "a uniformed security officer ordered [the plaintiff]
to stop soliciting signatures, with an implicit threat of physical
ejection." In another, "the defendant's statement that he would 'do
anything' to prevent the plaintiff's construction of a tennis court 'exceeded
impoliteness and constituted threat.'" Others included intimidating sexual
harassment, and the use of 17 police officers at UMass to prevent faculty and
community activists from using a reserved room to organize a protest against
"what the plaintiffs perceived as Bernard Cardinal Law's interference with
public policy on abortion rights, AIDS education in public schools, and gay
and lesbian rights."
The signature losing case is Bally v. Northeastern, 403 Mass. 713, in which
David Bally claimed that Northeastern and the NCAA's policy of requiring drug
tests for participation in NCAA sports was an unreasonable search and seizure
and violation of his privacy. He refused, and Northeastern dropped him from
the track and cross-country teams. The court said no because, among other
reasons, it was only due to a university policy indiscriminately designed and
impartially applied.
BTW, the first set of quotes come from, interestingly enough, a law review
article entitled "From Animal House to No House: Legal Rights of the Banned
Fraternity," 28 Conn. L. Rev. 167. :) For more easily available
information, I thought http://www.dwyercollora.com/articles/md_civil.htm was
pretty good, too.
Paul
P.S. For some related MIT-specific content, having an attorney present in COD
cases in the limited circumstance when the conduct could lead to criminal
prosecution avoids a potential MCRA issue that MIT denied an accused student
due process in a way the MCRA could redress, perhaps one of the very few
instances in which typical COD conduct could expose MIT to some liability.
Of course, it also helps to allow criminal cases to resolve before a COD
hearing is conducted, too.
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Hi there,
<p>Aram Harrow wrote:
<blockquote TYPE=CITE>1. the first amendment begins with the phrase "Congress
shall make no
<br> law..." * * * * actors that this does _not_ prevent
from
<br> restricting your speech include: corporations, private
universities
<br> and fellow members of mailing lists.</blockquote>
In the fair Commonwealth of Massachusetts, there is a limited way around
this. The Massachusetts Civil Rights Act, <a href="http://www.state.ma.us/legis/laws/mgl/12-11H.htm">MGL
c. 12, s. 11H</a>, enacted amid racial violence in Massachusetts in 1979,
holds a private actor to a public actor Constitutional standard in certain
circumstances. It has seen a fair amount of action around public
and private universities in Massachusetts, some cases winning, some losing.
<p>Essentially, if a private (or public, for that matter) actor denies
your constitutional (or statutory) rights through "threats, intimidation
or coercion," you may sue under the MCRA and hold them civilly liable,
including seeking injunctive relief (making them do something or stop doing
something). This could be a garden-variety hate crimes civil rights
statute, except that the conduct doesn't have to involve actual harm, only
the threat of it, the harm doesn't have to be terribly severe, and it doesn't
have to involve discrimination along "suspect classes" like race, gender,
sexual orientation, age etc.
<p>The MCRA states:
<p> Whenever any person or persons, whether or not acting
under color
<br> of law, interfere by threats, intimidation or coercion,
or attempt to interfere
<br> by threats, intimidation or coercion, with the exercise
or enjoyment by any
<br> other person or persons of rights secured by the
constitution or laws of the
<br> United States, or of rights secured by the constitution
or laws of the
<br> commonwealth, the attorney general may bring a civil
action for injunctive or
<br> other appropriate equitable relief in order to protect
the peaceable exercise
<br> or enjoyment of the right or rights secured.
<p>(A further statute allows a private actor to file suit, rather than
rely on the attorney general.)
<p>For some history--
<p>"In 1979, the Massachusetts legislature reacted to a series of violent
acts by whites against blacks. The violence included shootings, firebombing,
stoning, beating, and assailing of blacks by whites and, more specifically,
the Ku Klux Klan. The acts of violence against blacks culminated in the
shooting of a black high school student on a field at Charleston High School
in September, 1979.
<p>In order to combat the racially motivated violence, the Massachusetts
legislature enacted an unprecedented civil rights statute imposing constitutional
liability on a private actor, dropping the 'state action' requirement.
* * * * Thus, the Massachusetts statute broadens the universe of
potential defendants in civil rights cases to include private as well as
public actors."
<p>However, the Supreme Judicial Court is still going back and forth on
how far it should be taken. The most murky area is what constitutes
"threats, coercion, or intimidation," and particularly whether it requires
a threat of *physical* harm. It seems to agree that:
<p> Under the MCRA, a threat involves the intentional
exertion of pressure to
<br> make another fearful or apprehensive of injury or
harm. Intimidation involves
<br> putting in fear for the purpose of compelling or
deterring conduct. Coercion
<br> is the application to another of such force, either
physical or moral, as to
<br> constrain him to do against his will something he
would not otherwise have
<br> done. There must also be evidence of actual or potential
physical
<br> confrontations involving a threat of harm...
<p>but the Appeals Court tries to reconcile that with a contrary case,
Redgrave v. BSO, by saying that:
<p> ...the confrontation may involve third persons and
the threat of harm need
<br> not be directed at the plaintiff. See Redgrave
v. Boston Symphony Orchestra
<br> * * * (potential physical harm to audience and orchestra
members by third
<br> persons protesting plaintiff's political views is
a confrontation within the MCRA).
<p>The Redgrave case was interesting. Vanessa Redgrave was going
to to narrate Stravinsky's "Oedipus Rex" in a series of
<br>concerts, but people protested over her support of the PLO, and BSO
cancelled on her. She sued, claiming it ran afoul of the 1st amendment.
The court agreed, although it's still a little questionable whether it
would today.
<p>The "physical" harm threatened need not be life-threatening or violent,
but it does need to be made toward a specific person or specific group
of people. In one successful case, "a uniformed security officer ordered
[the plaintiff] to stop soliciting signatures, with an implicit threat
of physical ejection." In another, "the defendant's statement that
he would 'do anything' to prevent the plaintiff's construction of a tennis
court 'exceeded impoliteness and constituted threat.'" Others included
intimidating sexual harassment, and the use of 17 police officers at UMass
to prevent faculty and community activists from using a reserved room to
organize a protest against "what the plaintiffs perceived as Bernard Cardinal
Law's interference with public policy on abortion rights, AIDS education
in public schools, and gay and lesbian rights."
<p>The signature losing case is Bally v. Northeastern, 403 Mass. 713, in
which David Bally claimed that Northeastern and the NCAA's policy of requiring
drug tests for participation in NCAA sports was an unreasonable search
and seizure and violation of his privacy. He refused, and Northeastern
dropped him from the track and cross-country teams. The court said
no because, among other reasons, it was only due to a university policy
indiscriminately designed and impartially applied.
<p>BTW, the first set of quotes come from, interestingly enough, a law
review article entitled "From Animal House to No House: Legal Rights of
the Banned Fraternity," 28 Conn. L. Rev. 167. :) For more easily
available information, I thought <A HREF="http://www.dwyercollora.com/articles/md_civil.htm">http://www.dwyercollora.com/articles/md_civil.htm</A>
was pretty good, too.
<p>Paul
<p>P.S. For some related MIT-specific content, having an attorney present
in COD cases in the limited circumstance when the conduct could lead to
criminal prosecution avoids a potential MCRA issue that MIT denied an accused
student due process in a way the MCRA could redress, perhaps one of the
very few instances in which typical COD conduct could expose MIT to some
liability. Of course, it also helps to allow criminal cases to resolve
before a COD hearing is conducted, too.
<br> </html>
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