Berge went to the school superintendent’s office to inquire about tickets to a school play. He was neither rude nor vulgar and held his camera in plain view, announced he was recording, and announced that he was a “citizen journalist” doing a story on the issue. (link to video) Two of the three employees filmed did not wish to be filmed. However, after a lengthy conversation with an official who appeared to have no objection to being filmed, Berge politely left.
Mr. Berge subsequently uploaded the video to his public Facebook page, with commentary. He later received a Demand letter sent by Defendants-Appellees School Committee of Gloucester, Superintendent Ben Lummis, Human Resources Director Roberta Eason, and Ms. Delisi falsely alleged that Mr. Berge was in violation of Mass. Ann. Laws ch. 272, § 99(c) (the “Wiretapping Law”) and coercively threatened criminal prosecution if Berge did not immediately remove the Video from his Facebook account.
Berge filed a Complaint and Motion for Temporary Restraining Order and Preliminary Injunction. Defendants did not timely oppose the motion, but, for unknown reasons, the District Court ignored it. It was not until after Mr. Berge filed a notice of non-opposition 5 ½ months later, in an effort to get the court to act, that the defendants filed a belated opposition, to which Mr. Berge promptly replied. The court never ruled on the timeliness of the opposition instead, along with the dismissal, it denied the injunctive relief as moot because it dismissed the entire claim.
District Court held that qualified immunity barred the claim, as (according to the Court) there is no clearly established right to publish a video of unwilling government officials performing their duties – fully ignoring Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011).
On the retaliation for the exercise of the right to publish, the District Court jumped to the second prong of qualified immunity—whether the right violated was clearly established. The District Court referred to four cases cited by Mr. Berge, as being inapplicable. However, the District Court skipped right over the very first case cited: New York Times Co. v. United States, 403 U.S. 713 (1971). That case clearly establishes the right to publish government information lawfully obtained, as does the case cited by Defendants– Bartnicki v. Vopper, 532 U.S. 514, 528 (2001). The District Court held neither case that shows the right to publish was clearly established.
Further, as noted at p. 12, n. 2 of the decision, Mr. Berge challenged the judge-created doctrine of qualified immunity, though recognizing it is unlikely the First Circuit will thwart the Supreme Court’s current doctrine. Nevertheless, this case has some good elements with which to challenge qualified immunity in the First Amendment context.
The District Court dismissed Counts II & III (and, implicitly, Count IV), for declaratory relief that Mr. Berge’s actions did not violate the Massachusetts Wiretapping Statute or FERPA and declaratory relief as to the right to publish (which claims also implicate the First Amendment right to record, which, contrary to the District Court’s statement, was not “conceded”) as moot. Not all defendants actually withdrew the letter. But, even accepting that Defendants are now judicially estopped from contesting otherwise, Mr. Berge, a citizen-journalist, may record and publish Defendants in the future, and their request for nominal damages saves the claims from mootness.