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.

Comments

[apedad]

1. Note to all district-human-resources directors and other petty functionaries out there; if you're going to threaten someone with legal action then run that by your city/county attorney first.

2. And don't make hasty, unilateral decisions like this one too.

[Joe_dallas]

maybe thats what Sacramento's city attorney should have done

https://legalinsurrection.com/2024/07/sacramento-city-attorney-reported-to-have-threatened-a-target-store-for-nuisance-theft-calls/

[Rev. Arthur L. Kirkland]

The decision seems sound. Virus-flouting, antisocial misfits and cosplaying "journalists" have rights, too.

[JesusHadBlondeHairBlueEyes]

For now...

[Rev. Arthur L. Kirkland]

I saw little equivocation in that judicial opinion. I do not see much persuasive or influential movement against that sentiment.

[TwelveInchPianist]

"Virus-flouting..."

Kind of a knee-jerk response, no? How to you know the story isn't about lazy bureaucrats using the virus as an excuse?

[Bored Lawyer]

Knee-jerk is RAK's specialty. He oscillates between that and salivating when a bell rings.

[Rev. Arthur L. Kirkland]

Knee-jerk is my specialty.

Multifaceted daily bigotry is the Volokh Conspiracy’s core.

Everybody has problems.

Carry on, bigoted clingers.

[Bob from Ohio]

1A protects giant a-holes too.

[WuzYoungOnceToo]

The only giant asshole I see in this story is the public official abusing her position by threatening legal action based on nothing but her own ignorance of the law she was using as the basis for the threat.

[Bob from Ohio]

Bullying receptionists/secretaries is pretty low. The secretary is not responsible for covid policy.

If decent people ask "If that's okay with you.", and get no for an answer, they stop.

I stand by my characterization.

[WuzYoungOnceToo]

Bullying receptionists/secretaries is pretty low.

It would be, if anything like that had actually happened. There was not "bullying" of the executive secretary. ("Bullying" is one of those words that has been rendered meaningless via its overuse, as is the case here.)

If decent people ask “If that’s okay with you.”, and get no for an answer, they stop.

That might be inconsiderate...rude even...but it's a far cry from "bullying". If that's all it takes for you to label someone a "giant asshole" then you're rendering that term pretty meaningless as well.

[Rev. Arthur L. Kirkland]

Strong points, Bob from Ohio. I thought the same thing. I tend to doubt this is the plaintiff's first experience along this line.

[TwelveInchPianist]

"If decent people ask “If that’s okay with you.”, and get no for an answer, they stop."

Did the school ask, "If that's OK with you" before they shut down half the auditorium after the state had lifted all their mandates?

Why should people care if something's OK with public employees being paid with tax dollars?

[Rev. Arthur L. Kirkland]

That's the disaffected anti-government crank perspective.

Carry on, misfit clingers. So far as better Americans permit.

[TwelveInchPianist]

"That’s the disaffected anti-government crank perspective."

People who want the government to act efficiently are disaffected anti-government cranks?

That's the leftist perspective, I guess.

[not me]

And the apocalypse is upon us.

Rev. Arthur L. Kirkland and Bob from Ohio with the same post.

[Rev. Arthur L. Kirkland]

Bob's post was different. Maybe better.

[Jonathansingletary]

You would think that public officials would have some policies (or at least some effective skills) in responding to obnoxious assholes--I'm sorry, citizen journalists--like this guy. Have a plan, make sure everyone knows the plan, and then follow that plan. Then you don't have to overreact and violate someone's rights. This is not hard.

[Bob from Ohio]

"violate someone’s rights"

HR drone wrote a letter. He wasn't arrested, shot etc.

Write a letter back, copy the city attorney, odds are you get a quick apology back.

[WuzYoungOnceToo]

HR drone wrote a letter. He wasn’t arrested, shot etc.

The threat of legal action (based on a law that clearly was not applicable) because he did something within his rights to do is certainly a step in the attempt to violate of his rights.

So...what was it you were saying about "bullying"?

[Rev. Arthur L. Kirkland]

I seems likely that neither the plaintiff nor the letter's author (and the author's colleagues) knew what the fuck they were talking about as they were antagonizing each other.

[Bob from Ohio]

He was still an a-hole no matter what the HR woman wrote.

[WuzYoungOnceToo]

Put the shovel down, Bob.

[Rev. Arthur L. Kirkland]

I agree. Put the shovel down. There is little point to Bob smacking Wuz around any more. More hits from Bob won't change Wuz's antisocial, boorish, misfit nature or shake Wuz's fraternal affection for this plaintiff.

[Dr. Ed 2]

From a Massachusetts school superintendent -- not likely.
They're all incompetent assholes.

[Rev. Arthur L. Kirkland]

Good comment at a blog operated by assholes who were hired by schools. If schools didn’t hire assholes, you right-wing misfits wouldn’t have this gathering place at which to rant about modern America, gays, Blacks, women, Jews, immigrants, Muslims, transgender people, libertarians, liberals, properly educated people, lawyers, agnostics, normies, etc.

[John F. Carr]

I remember another case posted here within the past year or so allowing prohibition of recording in a public part of a police station.

[Rossami]

The counter-argument in that case was that the police station includes both public employees and private citizens. While the public employees have no privacy interest in their official public actions, the private citizens do have a significant privacy interest. And unlike private citizens at the mall or a local park, at least some of the private citizens in the police station are not there voluntarily. Their 'consent to be recorded' can neither inferred from their choice of profession nor from their choice to be in that particular public place.

[Rev. Arthur L. Kirkland]

That is a worthy point, too.

[JesusHadBlondeHairBlueEyes]

Look at all these Sacred Democracy types pissed off at a little sunlight and transparency being hoisted upon our governing class.

[Bored Lawyer]

When I was in law school, I remember someone said that the remedy is as important as the cause of action. "He done me wrong" has to be followed up with "what is the Court going to do about it?"

So what's the remedy here? Money seems inadequate. The damages were minimal, and whatever is paid will be by the taxpayers anyway. (There might be attorney's fees, but you know who gets those.)

How about an injunction ordering First Amendment training for the persons involved? Public officials should know the constraints they operate under. If they don't, make them learn.

[Noscitur a sociis]

So what’s the remedy here? Money seems inadequate.

Why? His rights were violated in a very modest way: what's inadequate about giving him a very modest amount of money in compensation?

[Bored Lawyer]

In terms of compensation, nothing. In terms of deterrence, it is ineffectual. So the plaintiff gets a nominal sum paid for by the taxpayer. Next time this happens, will this petty official feel any reason not to violate someone's rights?

[PlateOfFish]

Not paid by the taxpayers, paid personally by the secretary. This is a qualified immunity case, which applies to personal liability.

[Bored Lawyer]

In almost every case, the government worker is indemnified by the employer. Who, as a public entity, is funded by the taxpayer.

[Dr. Ed 2]

This is the Gloucester school dept -- it has a long history.
https://www.gloucestertimes.com/news/local_news/gloucester-high-principal-sullivan-resigns/article_69f7ed4e-fa07-5dd6-b5f8-d23e4bd39b79.html

[John F. Carr]

The complaint sought

I. Relief under section 1983, including an injunction.
II. A declaratory judgment that plaintiff did not violate the Wiretap Act.
III. A declaratory judgment that defendants may not declare plaintiff's video to be secret under FERPA.
IV. A declaratory judgment that plaintiff has a right to publish.

Berge walks away with a live claim against the individual defendants, but not the school committee as such. The declaratory and injunctive relief was denied as moot because defendants withdrew their demands under circumstances strongly suggesting future violations were unlikely.

A defendant's voluntarily ending an unconstitutional practice may not moot a case if the plaintiff's alleged injury may happen again. [...] But given defendants' withdrawal letter and open-court representations, we think they have made it absolutely clear that they will not repeat the challenged behavior.

[Rossami]

I despise qualified immunity and think it should be abolished in all circumstances but even if you think it might have some value in protecting government agents making life-and-death decisions in the heat of the moment, this very mich is not that scenario. If you have time to write a letter threatening legal action, you also have plenty of time to seek legal advice before you seal the envelope. There is no plausible excuse for that dereliction. Even if this had not been such a clear 1A violation, QI should not have even been entertained.

[WuzYoungOnceToo]

As much as I hate the fact that, in practice, QI is too often implemented in far too broad a manner, I do see the important practical value of it in principle. That said, you’re right that in this case there was no “heat of the moment” requirement to make a snap decision, and there was no excuse for not making sure that what she was doing did not run afoul of someone’s rights.

[Bored Lawyer]

Agreed. Timing I think is an important consideration in QI. This case was very different from a cop making a split-second decision.

[rloquitur]

Of course, very similarly, Xavier Becerra threatened journalists. And every f'in Democrat in here is cool with that.

[Rev. Arthur L. Kirkland]

The Trump-loving, worthless conservative assholes in Butler menaced reporters after Trump was shot. Because . . . well, just because they are disaffected, un-American, ignorant, right-wing write-offs.

Bitter clingers are making it somewhat difficult for their betters to continue to be gracious in victory toward the culture war's right-wing casualties.

[Theendoftheleft]

Just wait till your domestic culture war turns hot, AIDS. The idea of you even trying to defend your loved ones is amusing.

[rloquitur]

It seems I am correct---a Cabinet Member acted this way against journalists as a public official, and you try to deflect with non-specific claims about menacing reporters. In. The. Tank. You are so pathetic.

[tkamenick]

"Delisi then walked into superintendent Ben Lummis's office. Standing at the door of his office, Lummis asked Berge to stop recording."

This is ambiguous. Did Delisi ATTEMPT to walk into the office, and Lummis stood in the doorway blocking him unless he stopped recording? Or did Delisi make it into the office and then Lummis stepped in behind him? It sounds more likely like the former. But poorly written. And I would think that the superintendent's office would not be a publicly-accessible place where it would be OK to record despite requests otherwise.