First Amendment Right to Exclude Speakers

An interesting decision in Roman v. Trustees of Tufts College, 2009 WL 4894318 (Mass. Super. Ct. Oct. 26):

Dr. [Margo] Roman contends that when Brogan prevented her from attending the raw food diet lecture, that action constituted an interference with her rights to free speech and assembly under Massachusetts and Federal law. “To establish a claim under the [MCRA] the plaintiffs must prove that (1) their exercise or enjoyment of rights secured by the Constitution or laws of either the United States or of the Commonwealth, (2) have been interfered with, or attempted to be interfered with, and (3) that the interference or attempted interference was by ‘threats, intimidation or coercion.’ ” The MCRA does not require state action. See Bell v. Mazza, 394 Mass. 176 (1985) (plaintiff alleging violations of Massachusetts Declaration of Rights need not allege state action); but see Redgrave v. Boston Symphony Orch., Inc., 855 F.2d 888, 904 (1st Cir.1988) (“The right [to free speech] is to be free of state regulation …”)….

The question of whether the right to free speech can only be interfered with by the state, i.e., is inherently “[t]he right to be free of state regulation,” has not been decided. In Redgrave, supra, the First Circuit noted that “such a right traditionally has content only in relation to state action — the state must be neutral as to all expression. The right is to be free of state regulation …” 855 F.2d at 904. Assuming, arguendo, that Dr. Roman can state a claim under the MCRA for a private defendant’s interference with her right to free speech, none is established in this case.

Viewing the summary judgment record in the light (indeed brightest sunshine) most favorable to Dr. Roman, it might be said that (1) Dr. Roman knew that there would be a question and answer opportunity at the end of the raw food lecture; (2) Dr. Roman intended to speak her views at that time; (3) defendants knew that Dr. Roman would speak out during the question and answer session; and (4) defendants’ stated reason for excluding her — that she had not paid veterinary bills owed Tufts — was pretextual, and she was excluded to prevent her from speaking out at the lecture. Such actions still would not state a claim under the MCRA on which relief could be granted.

The issues in this case are akin to those in Redgrave. While that decision is not binding on this court, it constitutes persuasive authority and is instructive. In Redgrave, actress Vanessa Redgrave brought suit against the Boston Symphony Orchestra (BSO) after the latter canceled a contract for her to perform, allegedly because of her support of the Palestinian Liberation Organization and protests that her performance might therefore engender. 855 F.2d 888. In analyzing Redgrave’s claimed violations of free speech under the MCRA, the First Circuit concluded that the BSO could not be held liable “for exercising its free speech right not to perform.” Id. at 903. The court noted the conflict between the BSO’s and Redgrave’s rights to free speech and noted that “[i]f 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.” Id. at 904.

This case implicates that very conflict. Tufts is a private university and its decision to make a lecture available to the public does not make it a public forum. As a private institution, Tufts has a right to present the topics and information that it chooses to present. Even if the reason for excluding Dr. Roman was pretextual and based upon her advocacy of raw food diets and not on her failure to pay for [her horse] Champ’s veterinary services, Tufts had a right to control the presentation of the lecture from which she was excluded. “The freedom of … universities … 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.” Id. In other words, Tufts did not have to provide a forum to someone who held views on raw food diets for pets that contradicted Tufts’ views on the science related to such diets and their safety….

For some thoughts from me on a related topic, see here.