No Qualified Immunity When "Public Officials … Baselessly Threaten[] a Citizen-Journalist With Legal Action"

"if he did not remove a video on a matter of public concern that he made and posted on Facebook without breaking any law."

From Berge v. School Committee, decided yesterday by the First Circuit, in an opinion by Judge O. Rogeriee Thompson, joined by Judges David Barron and Lara Montecalvo (though there's a lot more going on in the opinion as well):

On a motion to dismiss a case, does qualified immunity protect public officials who baselessly threatened a citizen-journalist with legal action if he did not remove a video on a matter of public concern that he made and posted on Facebook without breaking any law? We answer no …. {[A]s a heads-up for the legal neophytes out there, qualified immunity gives officials cover when they decide close questions in reasonable (even if ultimately wrong) ways—sparing them from money-damages liability unless they violated a statutory or constitutional right that was clearly established at the time (much more on all that soon).} …

Inge Berge is a citizen-journalist living in Gloucester, Massachusetts. Back in early March 2022, he went to the city's school superintendent's office—which is open to the public (during specified hours, we presume). He wanted to buy tickets to his daughter's sold-out school play. And he wanted to hear from officials why the school's COVID-19 rules still capped the number of play-goers when the state had already lifted its COVID-19 mandates by then.

Visibly filming as he went along (he kept his camera out for all to see), Berge made sure to also tell everyone he met that he was recording. And no sign banned or restricted filming in the building's publicly accessible areas either.

Talking to executive secretary Stephanie Delisi, Berge said, "I'm filming this. I'm doing a story on it. If that's okay with you." "No, no I don't want to be filmed," Delisi answered back. Berge kept openly filming. Delisi then walked into superintendent Ben Lummis's office.

Standing at the door of his office, Lummis asked Berge to stop recording. "You do not have permission to film in this area." Berge kept openly filming. "I'm happy to speak with you," Lummis added, "if you turn that off." "You do not have my permission to film here right now," Lummis said as well. Berge kept openly filming. And Lummis closed his office door.

Assistant superintendent Gregg Bach then walked over to Berge. And with Berge still openly filming, Bach took notes about Berge's bid to see his daughter's play. Unlike the others, Bach voiced no objection to Berge's filming.

Hoping to "expose" the "unreasonableness" of the district's "policy," Berge uploaded the video (along with his commentary) to Facebook that very day. And he made the material publicly viewable as well.

None too pleased, district-human-resources director Roberta Eason fired off a letter to Berge within hours. Citing Mass. Gen. Laws ch. 272, § 99(C), she accused him of violating Massachusetts's wiretap act by not getting "the consent" of all participating officials before recording and posting the film. And she "demand[ed]" that he "immediately" remove the video or face "legal action" (his supposed wiretap act violation was the one and only reason she gave for the removal demand).

Turns out she was way off base in relying on the wiretap act. And that is because this law pertinently bans "secret" recordings, which Berge's most certainly was not….

Berge did not do as directed, however. He instead sued …. According to that count, defendants threatened "bogus legal" action under the state wiretap act to "frighten him into suppressing his own First Amendment rights." …

[W]e—after taking Berge's allegations as true (though knowing that discovery or trial evidence may cast the case in a different light)—have a hard time picturing a more textbook First Amendment violation.

Berge very publicly recorded public officials performing public duties in the publicly accessible part of a public building—all to get information about the district's COVID-19 policies, in a form he could then share, with the goal (to quote again from the complaint) of "expos[ing] and comment[ing] on the unreasonableness" of those "polic[ies]." And his speech (front and center in the complaint) about COVID-19 protocols—the kind that has sparked much political and social debate (and litigation too)—strikes us as sufficiently "a subject of legitimate news interest" to come within the sphere of public concern.

If the First Amendment means anything in a situation like this, it is that public officials cannot—as they did here—threaten a person with legal action under an obviously inapt statute simply because he published speech they did not like. "[T]o prevent the pursuit of legal action in this matter," the Eason-signed letter "demand[ed]" that Berge "immediately remove the

from [his] Facebook account and/or any other communications." Which shows the complaint plausibly alleges that the individual defendants knew the legal-action threat centered on Berge's right to publish. What is more—and as already explained—the letter cited the state wiretap act as the only basis for the removal demand (no one defends the threat on any other ground). But—as also earlier noted—the wiretap act only bans "secret" recordings (in which the persons recorded did not know they were being recorded) and thus does not apply here. Which shows the complaint plausibly alleges that the individual defendants knew such action was baseless….

Shifting then from qualified immunity's step one (constitutional rights violation) to step two (clearly established law), we also think it follows naturally from the above cases that Berge has plausibly pled a violation of a clearly established right to publish on a topic of public interest when the violators acted (as a reminder, but using a different case quote, a right is "clearly established" when it is no longer among the "hazy" area of constitutional issues that might be "reasonably misapprehend[ed]"). And by "acted" we mean (as the complaint alleges) threatening Berge with an obviously groundless legal action: Surely no sensible official reading these long-on-the-books opinions could believe that that act—assuming it represents an adverse action—was not a burden on Berge's First Amendment right to publish on a matter of public concern. So given all this, Berge's complaint plausibly alleges that the threat constituted First Amendment retaliation in violation of his clearly established right….

Marc J. Randazza, Jay M. Wolman, and Robert J. Morris II (Randazza Legal Group, PLLC) represent Berge.