The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Free Speech

Speech-Based Expulsion from Private Club Doesn't Violate Massachusetts Civil Rights Act

|

From yesterday's Report and Recommendation by Magistrate Judge Donald Cabell (D. Mass.) in Koppel v. Moses:

[According to the Complaint,] Koppel and Moses at one point were friends and fellow MIT graduate students. Both belonged to a student-run computer science club called the Student Information Processing Board ("SIPB"), which Moses was the Chair of at all relevant times.

On February 10, 2020, a "keyholder" SIPB member stated during a meeting "that Koppel should not be made keyholder because he had made a political comment in a chatroom the preceding September, stating something that [this individual] disliked." {A keyholder in SIPB is a member recognized for significant participation and contributions to SIPB. Keyholders are nominated and elected by existing keyholders. Keyholder status is desirable because it entitles one to be elected to the executive committee and to other positions of responsibility. Koppel had been working toward keyholder status since 2018.}  Consequently, on February 27, 2020, Moses told Koppel that he "was being expelled" from SIPB because his public political statements had made some SIPB members "uncomfortable."

Moses sent an email the same day to a group of approximately 140 SIPB keyholders from at least the preceding twenty years and indicated in it that Koppel was being removed from SIPB for reasons of sexual harassment.  Then, on March 2, 2020, Moses sent another email to a larger distribution list of between 500 and 700 SIPB-affiliated persons, stating that Koppel had made many keyholders "deeply uncomfortable" and for that reason had been requested to no longer participate in SIPB activities.

Koppel sued for defamation and for violation of the Massachusetts Civil Rights Act, which reads (bullets added, and combining the two relevant provisions):

  • Whenever any person or persons, whether or not acting under color of law,
  • interfere [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 Massachusetts], …
  • any person whose exercise or enjoyment of rights … has been interfered with, or attempted to be interfered with, …
  • may [sue] for injunctive [relief, and] … compensatory money damages … [and] the costs of the litigation and reasonable attorneys' fees ….

Moses moved to dismiss the MCRA claim (the motion didn't deal with the defamation claim), and the Magistrate Judge recommended that the District Court indeed dismiss it:

Koppel contends here that Moses defamed him and had him removed from SIPB "to punish and intimidate" him for his speech, and this conduct in turn interfered with Koppel's right to engage in protected speech, because it caused him to exercise "near-total self-censorship" and "disrupt[ed] his freedom to speak and his ability to engage in associations for protected activity." As apparent examples, Koppel alleges that he was hesitant to "like" a "slightly political statement by a friend on social media," and "declined an invitation to appear on the Fox News show The Ingraham Angle to speak about a matter of public interest." Koppel contends that Moses' conduct could be viewed as either a threat or an act of intimidation or coercion….

[But] the complaint (as framed) fails to allege sufficient facts to show a threat, intimidation, or coercion within the meaning of the MCRA, and fails as well to allege facts showing that the natural effect of the defendant's conduct was to interfere with the plaintiff's right to thereafter engage in the referenced protected speech activities.

To begin, the Massachusetts Supreme Judicial Court (SJC) has defined the terms "threat," "intimidation," or "coercion" for purposes of the MCRA. A 'threat' "involves the intentional exertion of pressure to make another fearful or apprehensive of injury or harm;" 'intimidation' involves putting one "in fear for the purpose of compelling or deterring conduct;" and 'coercion' involves "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." Inherent in all three qualifying actions is that the conduct must compel the plaintiff to do something he is not lawfully required to do or to refrain from doing something he is entitled to do.

Applied here, the complaint fails to allege a threat because it contains no allegation that Moses exerted pressure on Koppel to make Koppel "fearful or apprehensive of injury or harm," or that Koppel ever felt fearful of injury or harm. In this regard, the SJC has stressed that a MCRA claim based on a threat will almost always require proof of a potential physical confrontation. As the complaint makes no such allegations and, on the contrary, reflects that Moses did not ever use physical force in dealing with Koppel, it follows that it fails to adequately assert a threat under the statute.

With respect to intimidation, the complaint also falls short because it fails to allege facts suggesting that Moses sought to place Koppel in fear to deter Koppel from engaging in any conduct. Koppel does contend that Moses wished to "punish and intimidate" him, but he notably contends the punishment was for things Koppel had previously said, that is, for his past conduct. This matters because a putative MCRA plaintiff must show that a defendant acted to prevent the plaintiff from exercising protected speech rights in the future, not merely to retaliate against him for previous statements.

Finally, the complaint for similar reasons fails to allege that Moses coerced Koppel within the meaning of the MCRA. Koppel alleges that Moses smeared him and had him removed from SIPB in retaliation for his prior speech, but notably does not allege that Moses acted to deter Koppel from thereafter engaging in similar conduct with anyone or any entity within or outside the MIT campus. In sum, even crediting the complaint's allegations as true, that is, even assuming that Moses "punished" Koppel for prior statements Koppel had made by making defamatory comments about Koppel and having him expelled from SIPB, that conduct fails to constitute a threat or act of intimidation or coercion within the meaning of the MCRA.

More, even assuming arguendo Moses' conduct were deemed sufficient to constitute one of the three requisite acts, the complaint would still fail to state a valid MCRA claim because it fails to allege facts showing that the "natural effect" of Moses' conduct was to interfere with Koppel's ability to engage in certain protected speech as alleged. In this regard, the complaint simply goes too far.

It might be reasonable to believe that a person in Koppel's position, after being criticized and expelled from a student organization for verbal harassment, might be somewhat reluctant for a period of time to engage in certain activities at MIT, but the complaint here alleges far more broadly that the effect of Moses' conduct was to cause Koppel to exercise "near-total self-censorship" with respect to activities far beyond the university campus or community, to such a degree that he was hesitant to "like" a "slightly political" posting on social media or appear on a national television show. It is not self-evident to this court that Moses' conduct might naturally cause Koppel to withdraw from social life outside of MIT to the far-reaching extent he claims it did, and the complaint asserts no additional or specific facts to plausibly permit one to see Koppel's reaction as anything other than an overreaction. In the absence of additional facts that might help one see Koppel's severe reaction as a natural consequence of his expulsion from SIPB, the MCRA claim, to this court, is too strained to go forward.

{In light of the court's conclusion, it is not necessary to consider Moses' additional argument that Koppel's expulsion from SIPB was not serious enough to support a MCRA claim.}

NEXT: Today in Supreme Court History: February 15, 1790

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. "On February 10, 2020, a "keyholder" SIPB member stated during a meeting "that Koppel should not be made keyholder because he had made a political comment in a chatroom the preceding September, stating something that [this individual] disliked." "

    "Moses sent an email the same day to a group of approximately 140 SIPB keyholders from at least the preceding twenty years and indicated in it that Koppel was being removed from SIPB for reasons of sexual harassment."

    So, I take it the defamation claim is still live?

    1. Mass. Is totally biased against conservatives. All should leave this state. All conservatives should shun it. Give it to Canada in trade for a western province.

      1. The constitution should apply to any government privileged entity.

        Does this club meet in a room in a tax exempt facility? It is subsidized by the government. The school is an agent of the government.

  2. This is the second EV post about litigation in Massachusetts where I look at the case caption and say "I know who that is!" But the controversy is new to me. I can say MIT is much more "woke" than it was in decades past and there seems to be more of an expectation that people will conform to political orthodoxy.

    "In this regard, the SJC has stressed that a MCRA claim based on a threat will almost always require proof of a potential physical confrontation."

    The law has always struck me as quite vague in what acts are prohibited and what "rights" are protected. "Almost always" leaves an exception and I had the impression it was one of those exceptions that people want to swallow the rule.

    1. My son has long wanted to attend MIT, on account of his hero Dick Feynman having been there. He's only 13, so I guess I have some time yet to break it to him about how the place has since gone downhill.

      1. I mean, if you're going to follow Feynman, I feel like Princeton or Caltech would be more where Feynman really came into his own.

        I dunno if I'd tell my kid MIT was woke based on a random blog post, but I recall when I visited in the late 90s it was a dreary grinding place, and I never applied.

        1. I applied, and was accepted, back in the 70's, but ended up going elsewhere for financial reasons.

          I wouldn't say that MIT was woke based on a random blog post, but I'd have said it was woke before seeing this one, based on all sorts of information.

          1. The canceling of the geophysics lecture by Dorian Abbot, based on the fact that he opposed race-based affirmative action, would be one.

            1. I agree that going after scientists for their research outcomes is a new and bad trend.

              I don't think it's institutionally based, myself. You go to any R1, you're going to have to deal with it.

              1. "Any", or just "most"? Anyway, we're concerned that MIT succumbed to the trend, no that it's an outlier.

                Personally, when the time comes, I'm going to encourage my son to go to college abroad. This disease seems less advanced in many other countries, and college is more affordable even for international students, in many countries, than it is in the US.

                1. I thought the same thing when our turn came - to the point that we scheduled a family vacation so that he could tour Oxford. We came away deeply disturbed by the level of discrimination and bigotry that they consider completely normal. The elitism and hypocrisy overbalanced any possible advantages. The tour guide, to her great credit, was very transparent about identifying and explaining the cultural differences that cause problems for students from the US. She laid out one of the best comparisons of the rights of a citizen and the rights of a subject that I have ever heard.

                  She, by the way, was very happy being a subject. I came away utterly convinced that I don't ever want to be one. So did my son. So it was a worthwhile and highly educational trip even though he decided to pursue only stateside schools.

                  1. Was it just the much broader defamation laws, or is there more?

                2. Oh, I wouldn't consider an English college; Remember, Orwell was writing about England.

                  More likely the Philippines. Depends on the major he's interested in, actually.

                  1. School is about 4 things:
                    -The name on the diploma
                    -The actual education
                    -The connections and network you create
                    -The experience

                    Even allowing the US is worse on the 4th (not sure if that's true...), and assuming the education element is at parity in other countries, the US is head and shoulders for the other three.

                    1. Other two.

                  2. Brett Bellmore, who can't stand modern America (and modern Americans, and mainstream American institutions) because all of this damned progress offends his bigoted, antisocial, right-wing sensibilities, threatens to (attempt to) steer his child to a foreign educational institution?

                    Yow!

        2. In The Mote in God's Eye, the Moties are a caste species like insects, except more like great apes. They have warriors, politicians, engineers, technicians, and so on.

          The engineers are geniuses. For example, they couldn't quite cobble together a heart lung machine from junk in time to save a severed head.

          But they are mute.

          Hiw dare the geniuses everyone depends on have an opinion on things! That's the job of the political class and power brokers!

          So shut the hell up, MIT geniuses, lest the cavemen you've allowed to pull the strings jerk you around. Nevermind most couldn't figure their way out of a paper bag.

          Remember: You are instructed to keep your mouths closed, and only are permitted to use your genius to invent things, as the good servant caste you are.

          1. What does this have to do with what anyone in this conversation is saying?

            1. Koppel apparently opened his mouth at some point, and got punished. Thought that was obvious.

              1. By his fellow MIT folks, so I don't think this analogy works.

                Even formulated in favor of Koppel, the issue is not that anyone wants MIT to be full of proles because it's got engineers.

                1. No, the issue is some of the proles, (Engineers looking for management positions?) policing the others.

              2. Perhaps Koppel can console himself by singing "The Ballad Of Artie Ray Lee Wayne Jim-Bob Kirkland."

  3. But the prospect of future damages only equals no standing. This is Humpty Dumpty logic.

  4. If I was a juror, I would be highly skeptical about using the law to cover expulsion from a social club. A social club should be able to include/exclude for any reason or no reason. It could even be [horrors] racial.

    1. The article seems to be sketchy on details but wouldn't announcing that you are being expelled for sexual harassment when the original complaint was about a political opinion constitute some sort of defamation? I generally agree that private clubs should be able to have whoever they want as members but that ship seems to have sailed many years ago and it still wouldn't allow you to defame them as you see them to the door.

      1. but that ship seems to have sailed many years ago
        Huh? Can you elaborate?

        it still wouldn't allow you to defame them as you see them to the door.

        Yes on the liability portion of the suit, but there's still the damages part to consider.

        1. Anti-discrimination laws seem to have done in freedom of association, I think that's what he means.

          1. Anti discrimination laws are unconstitutional no matter the Supreme Court decisions.

      2. That struck me as well. There is in the article little to explain the "political" nature of the comment nor the nature of the "sexual" harassment it is possible both refer to the same statement(s) which could be seen as political or sexual depending on perspective.

        1. That possibility did occur to me, but,

          "On February 10, 2020, a “keyholder”1 SIPB member stated during a meeting “that Koppel should not be made keyholder because he had made a political comment in a chatroom the preceding September, stating something that [this individual] disliked.”"

          So, seems kind of unlikely as sexual harassment, it was specifically political.

          The MCRA claim seems to fail, trivially, because you have to be subject to a threat, and he'd already been kicked out of the club. What was Moses doing to do, double kick him out?

    2. SIPB is an officially recognized student group at a school receiving federal funds. It receives substantial benefits from the school. At one time it was not formally a "student activity" but instead a specially chartered entity within a department. That may still be the case. Whether or not it is subject to "student activity" rules it is subject to generally applicable institute rules. So race and sexual orientation are protected attributes. Politicial affiliation may not be.

      1. Amazing to see how far some conservatives are willing to grow government sometimes.

        school receiving federal funds is not a material fact in this case. Or in any case about speech and accommodation.

        And a club being chartered by the school matters only as much as public schools can't pick and choose what they fund; no restrictions on the club itself I'm aware of.

        I don't know what MIT's internal rules are, but this lawsuit has not brought them up.

        1. Amazing to see how far some conservatives are willing to grow government sometimes.

          I can't speak for the commenter you're responding to, but I would cut off all federal (and state!) funding of higher education. Is that small-government enough for you?

          1. But in the meantime, you're insisting government regs reach private clubs in private schools.

            1. Government regs already reach private clubs in private schools. At the left's insistence, IIRC. No growth necessary.

              1. I am well aware - and I think it's a good thing. But odd to see libertarians asking for such.

                Indeed, asking for *Constitutional requirements* to extend to such.

                1. What's so odd about asking that policies you think shouldn't exist at least be impartially administered?

                  1. That's not what's being asked for - they want the policies' reach to extend to institutions they currently don't touch.

                    That's not fairness, that's wanting to use big government as a thug to protect your interests.

                    (I don't think that's what it is, but that's approximately the usual libertarian formulation)

                    1. they want the policies' reach to extend to institutions they currently don't touch.

                      A scant half hour earlier, in the very same exchange, TiP corrected you on this and you said "I am well aware - and I think it's a good thing." Now you've flipped back again.

                      Are you a bot?

                    2. Did you read the rest of that comment? Or the rest of this thread? Folks are advocating well beyond the Mass CRA.

                      At least a couple want to apply the 1A to any organization getting federal funds!! Not even my liberal self wants that level of government meddling.

                    3. Ah, so you're playing the "somebody said something somewhere" game, instead of addressing the specific points from the person you're responding to. Got it. Carry on.

                    4. No, the person I replied to was saying it - John F. Carr. This is not hard to follow, but you tend to not read things too carefully, I've noticed.

                      Brett, in to defending him, appears to endorse or misunderstand Carr's thesis.

                    5. Nah -- you expressly told Ed you were responding to him, and then appealed to some ethereal "libertarians."

                      I understand it can get hard to keep track of all the shitwads of confetti you fling around here, but the thread is right here for all to read -- nearly all of it fits on the screen at the same time.

                  2. Oh, whatever, you pedantic ass.

                    Ed took issue with my reply to Carr. My reply to him was in that context.

                    Bottom line -
                    Carr and Brett are being fair-weather libertarians,
                    Ed thinks this is a good time burnishing his libertarian honor,
                    TiP jumped in the middle and misunderstood the conversation,

                    and you're doing your usual game of pretending you don't understand how conversations work in order to make posts that manage to be both pedantic and strawmen.

                    1. To clarify -

                      At the start of this sub-thread you said, "... a club being chartered by the school matters only as much as public schools can't pick and choose what they fund; no restrictions on the club itself I'm aware of."

                      I think perhaps others are assuming that a school-chartered club would have "restrictions," especially if the school receives Federal funding. You seem to assume the opposite. Does anyone actually know?

                      As for libertarian hypocrisy, I think the disturbing attitudes among some (many?) libertarians towards Lincoln and the CSA are far more valuable targets. A libertarian who merely wants government regulations that are applied to not-progressives to also be applied to progressives seems like a pretty small fish to fry.

          2. (And, of course, once government funds are cut off, I'd let them "discriminate" on any basis they want.)

            1. Extending the 1A to private institutions that merely receive federal funds is a huge expansion of regulation from the current status.

        2. Doesn't it depend upon what is in the student handbook? If they claim that it protects freedom of speech, and violates that claim, isn't it a breach?

          1. The handbook would matter if the defendant were MIT, the other party to the contract to exchange money for education. The defendant in this case is apparently sued as an individual.

        3. I am neither supporting nor opposing the state of the law. I am responding to the comment "A social club should be able to include/exclude for any reason or no reason." This organization is not in the same regulatory environment as a group of friends gathering in a rented ballroom to eat avocado toast and bemoan the legacy of Trump.

          1. Yes it is, though.

            I'm tracking 3 things you put forth to distinguish this situation:
            A. receipt of federal funds/benefits
            B. specially chartered entity
            C. subject to generally applicable institute rules

            A does not change the regulatory environment
            B is not relevant
            C is not different from your example

            You are working very hard to find reasons for this case to fall under greater regulation than it does. I continue to find that notable, albeit not surprising.

      2. I too was curious about the basis for the conclusion that this student organization is entirely private and not subject to federal rules. The decision seems to simply assume it without actually deciding it. Is that some odd artifact of the way the case was presented?

        To Sarcastr0's point above, he's just wrong. Maybe student organizations shouldn't be compelled to abide by the First Amendment based on charter or funding but current precedent says that they are so compelled. While a long-term libertarian ideal might be the abolition of that requirement, it is not anti-libertarian to call for equal enforcement in the meantime.

        1. Maybe student organizations shouldn't be compelled to abide by the First Amendment based on charter or funding but current precedent says that they are so compelled.

          What precedent are you thinking of?

  5. It would be helpful to know what he actually said.

    Rather than argue about competing characterizations of what he said.

    1. The complaint is on courtlistener's free copy of the docket at https://www.courtlistener.com/docket/17418894/koppel-v-moses/
      See attachment 3 to the first docket entry.

      The counts in the original complaint are
      I. Defamation
      II. Interference with advantageous relations (dismissed by docket entry 24)
      III. Invasion of privacy, including false disclosure of private facts (dismissed by docket entry 24)
      IV. Civil conspiracy (dismissed by docket entry 24)

      The amended complaint is docket entry 54 and adds

      V. Violation of the Massachusetts Civil Rights Act (recommended to be dismissed by a magistrate judge; see original post)

      1. What we're curious about is the social media post the September before, that triggered this, and the statements that supposedly made people "feel uncomfortable"; According to Koppel's filing, Moses never deigned to reveal what they were.

        1. I read through the same in some hopes of understanding what was said but I did not find it. The document makes it clear Koppel was never told what he did or when only that someone(s) were upset.

          I am actually more amazed the head of the organization has such absolute power to remove members without recourse.

  6. I find this decision somewhat problematic. There are many ways you can coerce and threaten people that don’t involve physical force. You can take their property, you can blackmail them, you can defame them. It seems to me the terms are broad enough to encompass something that is illegal and harms, so that a person would naturally tend to alter their conduct to avoid the harm.

    The plaintiff here alleges more than that the defendants merely expelled him from their private group because of his speech. He alleges they defamed him. And if his allegation is true, as the court has to accept at the dismissal stage, it seems to me that damaging a person’s character is just as much a coercive act as damaging them physically.

    So if the plaintiff properly alleged that the defendants defamed him as a consequence of his speech, it seems to me that his MCRA claim ought to survive dismissal and he should get a chance to prove it. The fact that the defamation is directed to coerce his speech makes it different from an ordinary defamation claim in the same way beating him up to coerce his speech would distinguish his claim from an ordinary assault claim.

    And while I agree with the court that merely expelling a person from a private group, a legal act, is not coercion under either MCRA or a common-sense meaning of the “coercion,” falsely destroying a person’s character and reputation really is coercive in a common-sense way.

    Of course, if the plaintiff hasn’t adequately alleged defamation and the defamation claim fails, an MCRA claim dependant on defamation as the coercive element would likely also fail. But the judge never ruled on the defamation claim.

    1. Since this is a magistrate’s report, the plaintiff has a chance to argue to the District Court judge that the magistrate got it wrong, and to clarify what exactly the coercive element in the MCRA allegation is.

  7. The Amended Complaint characterizes plaintiff's original post like this:
    "multiple SPIB members complained about statements Koppel made in a public chatroom the previous September in which he stated that both men and women were capable of abusing power."

    Of course, that is a characterization, not a quotation, so we don't know the specific language used. But, it seems clear that there was some theoretical intersection between the topic of plaintiff's comments and the (overly) broad notion of Title IX-style sex-based claims that are in vogue in some places.

    1. I find that characterization remarkably bland and unless there is much specific language or more context it's completely unobjectionable.

      I suppose in some #MeToo exchange someone could take offense.

    2. Ah, so he got kicked out for stating an obvious truth that only a sexist bigot would deny. Kind of suspected it was something like that.

  8. Liz Cheney and Adam Kinzinger must find clingers' focus on this litigation fascinating.

    1. Sounds like there might have also been a false accusation of sexual harassment. Certainly even a fair minded individual like you can't think that is OK?

      1. "Sounds like"

        "might have been"

        What a pathetic attempt to craft an argument.

        You seem a natural for a position at FIRE, though.

        1. Way to dodge the question. The complaint alleges a false accusation of sexual harassment and I take it that the party is not just outright lying in a federal lawsuit. So given that some credibility has to be given to the party asserting the fact, do you think a false accusation of sexual harassment is not OK?

          1. " The complaint alleges a false accusation of sexual harassment and I take it that the party is not just outright lying in a federal lawsuit. "

            Here is a recording of Jimmy the Dane when the defendant denies that allegation in an answer -- in a federal lawsuit!

            Nice outfit, Jimmy.

Please to post comments