The Volokh Conspiracy
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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.}