A disgruntled Massachusetts parent recently obtained an important ruling from the United States Court of Appeals for the First Circuit. The Glouster school his daughter attended may now face liability for threats it made.
Inge Berge is a citizen-journalist who lives in Gloucester, Massachusetts. In early March 2022, he went to the city's school superintendent's office — which is open to the public. 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. No sign banned or restricted filming in the building's publicly accessible areas either.
Berge encountered several school employees while filming – most expressed their displeasure with Berge recording his encounters. 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.
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). This was not accurate. The Massachusetts law only forbids secret taping and Berge did not tape in secret.
Berge did not do as Ms. Eason directed. Instead, he sued the District and several officials for First Amendment retaliation. According to Berge, the defendants threatened "bogus legal" action under the state wiretap act to "frighten him into suppressing his own First Amendment rights." Before answering the complaint, defendants asked the district judge to dismiss the suit for not stating a claim for which relief could be granted. Berge opposed the motion. But the judge tossed the case, finding that existing law did not clearly establish a First Amendment right to publish the video because Berge had not offered any "precedent even vaguely applicable to the facts." For that reason, the court concluded that the defendants had qualified immunity.
The appellate court disagreed. It first discussed the concept of qualified immunity, noting that it shields the individual defendants unless Berge pled facts — adopted as true — showing that (1) they violated a constitutional guarantee that (2) was not only established but "clearly established" when they acted. According to the court, a right is clearly established if it was "sufficiently clear that every reasonable official would [have understood] that what he is doing violates that right."
In determining what a reasonable official would have understood here, the court noted that 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 of "expos[ing] and comment[ing] on the unreasonableness" of those "polic[ies]." In the court's view, "[i]f 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."
For this reason, the appellate court reversed the trial court's decision. Mr. Berge may now proceed with his lawsuit. And the officials at Glouster have learned a different kind of lesson about bullying.
