A ruling from the 1st U.S. Circuit Court of Appeals has pulled “qualified immunity” protections from officials in a school district in Massachusetts who threatened a reporter for his decision to openly film his questions in the superintendent’s office.
The journalist, Inge Berge, went to the office, camera publicly visible and filming, to ask officials about their decision to limit attendance at a play involving Berge’s child over COVID-19, when the state limits already had been lifted.
He filmed his questioning openly, and when he later posted the session online, the school threatened him with legal action for violating a statute that limits “secret” recordings.
The court’s opinion said, “Among the many issues before us, the headline-grabbing one is this: 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.”
“Yesterday’s ruling is based on the same principle as IJ’s victory at the Supreme Court earlier this year in Gonzalez v. Trevino, which made clear that government officials can’t use state laws as cover for retaliation against free speech,” explained Institute for Justice lawyer Jaba Tsitsuashvili. “Government retaliation against speech is unconstitutional, and the court of appeals made clear that qualified immunity won’t shield officials who happen to retaliate in novel ways.”
The appeals court overturned a lower ruling that granted school officials that qualified immunity – essentially protection from any liability for their own actions.
Officials had threatened Berge with legal action.
According to the IJ, “In March 2022, Inge Berge wanted to buy tickets to attend his daughter’s middle school play, but he missed out on the tickets because the school was limiting capacity due to COVID-19. Upset that he might miss his daughter’s play, he went to the superintendent’s office—which was open to the public—to complain about the policy and try to secure a ticket. Berge openly and obviously recorded his visit to the superintendent’s office and his discussion with the officials.
“He remained calm as he spoke with the officials, two of whom refused to talk while being recorded, and a third who said he would look into the situation. But later that day, after Berge posted the interaction on Facebook, the superintendent’s office sent him a letter demanding he remove the video or face legal repercussions. This blatant effort to suppress Berge’s speech was based on a statute that only prohibits ‘secret’ recordings—but the letter itself made clear that there was nothing secret about what Berge did,” the IJ said.
Berge followed with a First Amendment lawsuit, and the school eventually rescinded its demand that the video be removed.
But the lower court applied “qualified immunity” to the school officials to protect them from Berge’s claims.
The lower court’s ruling dismissed “Berge’s retaliation claims against the school administration. The court ruled that the officials were shielded by qualified immunity—a judicial doctrine that shields government officials from civil liability unless the unconstitutionality of their conduct was ‘clearly established’—because the facts of this case did not exactly match those of any prior case.”
But the IJ explained in its friend-of-the-court brief in the case, “that is not how the qualified immunity doctrine works, even in the face of its unjustified expansions. Well-established First Amendment principles put all public officials on notice that retaliation for speech is obviously unconstitutional. As IJ argued and as the court of appeals held, the novel circumstances of this case made the violation of those principles no less obvious.”
“The school officials argued that previous case law regarding the right to publish recordings of government officials only dealt with the right to record police officers, so the unconstitutionality of other officials’ retaliatory conduct was not clearly established. But the court saw through that argument, saying: ‘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.”
Those principles protect speakers of all stripes from being retaliated against for lawfully voicing their displeasure with government action.
It was the school’s human resources official, Roberta Eason, who actually wrote the letter to Berge, accusing him of violating the state’s wiretap law. She demanded the removal of the recording.
“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,” the court said.
He responded with a lawsuit charging school officials with retaliating against him for his free speech.
The case now has been sent back to the lower court for further proceedings, with a note that Berge “shall recover his costs on appeal.”
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