Berge v. Sch. Comm. of Gloucester

107 F.4th 33

Inge BERGE, Plaintiff, Appellant, v. SCHOOL COMMITTEE OF GLOUCESTER; Ben Lummis, in his personal capacity;Roberta A. Eason, in her personal capacity; and Stephanie Delisi, in her personal capacity, Defendants, Appellees.

No. 22-1954

United States Court of Appeals, First Circuit

July 15, 2024

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Angel Kelley, District Judge]

Marc J. Randazza, with whom Jay M. Wolman, Robert J. Morris II, and Randazza Legal Group, PLLC were on brief, for appellant.

John J. Davis, with whom Pierce Davis & Perritano LLC was on brief, for appellees.

Anna J. Goodman, Jaba Tsitsuashvili, Patrick Jaicomo, Anna Bidwell, Institute for Justice, Ronald London, and Foundation for Individual Rights and Expression, amici curiae.

Alexandra Arnold, Ruth A. Bourquin, Matthew R. Segal, American Civil Liberties Union Foundation of Massachusetts, Inc., and The New England First Amendment Coalition, amici curiae.

Jennifer Safstrom, Stanton Foundation First Amendment Clinic at Vanderbilt Law School, Mickey H. Osterreicher, and National Press Photographers Association, amici curiae.

Before Barron, Chief Judge, Thompson and Montecalvo, Circuit Judges.

THOMPSON, Circuit Judge.

PREFACE

Among the many issues before us, the headline-grabbing one is this: On a motion to dismiss a case, see Fed. R. Civ. P. 12(b)(6), 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?¹ We answer no, for reasons shortly stated (we also address some perhaps-less-exciting-but-still-very-important mootness questions before signing off).

HOW THE CASE CAME TO US

Accepting the facts in the complaint and incorporated materials as true and relying on concessions made in the opposition to the motion to dismiss, see, e.g., Eves v. LePage, 927 F.3d 575, 578 n.2 (1st Cir. 2019); Schatz v. Republican State Leadership Comm., 669 F.3d 50, 55-56 (1st Cir. 2012), the following story unfolds.

Encounter

Inge Berge is a citizen-journalist living in Gloucester, Massachusetts.² 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).³

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. See, e.g., Curtatone v. Barstool Sports, Inc., 487 Mass. 655, 169 N.E.3d 480, 483-84 (2021) (emphasis added) (concluding that the plaintiff's wiretap act claim failed after noting that the defendant-interviewer "did not secretly hear or record the challenged communication" within act's "plain meaning" since "plaintiff knew throughout the call that his words were being heard and recorded").

Federal Lawsuit

Berge did not do as directed, however. He instead sued the Gloucester school committee, plus Lummis, Eason, and Delisi in their individual capacities. His operative complaint alleges four counts (we simplify our description, but without affecting our analysis). Count 1 presses a claim of First Amendment retaliation under 42 U.S.C. § 1983 (which allows a plaintiff to sue persons who, acting under the color of state law, violated the plaintiff's federal constitutional or statutory rights. See Martin v. Somerset Cnty., 86 F.4th 938, 943 (1st Cir. 2023)).⁴ According to that count, defendants threatened "bogus legal" action under the state wiretap act to "frighten him into suppressing his own First Amendment rights." Counts 2 through 4 seek declarations that Berge "had a First Amendment right to publish" his video and that he violated neither the state wiretap act nor the federal Family Educational Rights and Privacy Act ("FERPA," which relevantly bars schools from unilaterally disclosing sensitive education records, see 20 U.S.C. § 1232g(b)).⁵ Each declaratory count alleges that he "desires to continue to record and publish videos, with audio included, of his anticipated future communications with [d]efendants." And each also alleges that by "falsely accus[ing]" him of breaking the law and making a mockery "of his First Amendment rights," defendants put him "in fear of prosecution" and "directly harm[ed] . . . his reputation." The complaint requests damages, declaratory and injunctive relief, and attorney fees.

Along with his complaint, Berge filed a motion for a temporary restraining order and preliminary injunction.⁶ Spotlighting the Eason-signed letter, the motion asked the district judge to stop defendants "from threatening or attempting to coerce [him] into removing his First Amendment-protected speech."

Days later (after Berge had served the complaint), the school committee's lawyer phoned Berge's to say that the district had withdrawn the Eason-signed letter. In a written follow-up, the school committee's attorney confirmed "that the [Eason-signed] letter . . . has been revoked and the [d]istrict will not take any criminal action against . . . Berge relating to the recording that took place inside the school administration building" in early March 2022.

Also around this same time, Berge's lawyer emailed the school committee's to say that "[w]e have accepted, for the sake of peace at this time, your position that there was no First Amendment right to record in that office" — adding that "[w]e do disagree, but had not sought your admission of this, nor do we bring that claim in the [operative] complaint[ ]." The email then insisted that "Berge had a First Amendment right to publish the video." So "[e]ven if" he "unlawfully made" the video, the email continued, "he would still have a First Amendment right to publish it" — "[t]he legal threat was that he would be prosecuted if he did not cease publication of the video."

Before answering the complaint, defendants asked the district judge to dismiss the suit for not stating a claim for which relief could be granted. See Fed. R. Civ. P. 12(b)(6). Berge opposed the motion. But the judge tossed the case. Pertinently for our purposes, she first granted the individual defendants qualified immunity on the retaliation count. As she saw things, 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" presented here. She next labeled the declaratory counts moot because defendants had revoked the Eason-signed letter. And she saw "little chance" that, after the case's "dismissal," they would "send a subsequent demand letter to reignite this controversy" — principally because they "have agreed to take no further action." She also denied the motion for a temporary restraining order and preliminary injunction as moot.⁷

Berge timely appealed the complaint's dismissal and the motion's denial.

OUR TAKE ON THE SITUATION

Complaint's Dismissal

The judge (to repeat) dismissed Berge's First Amendment retaliation count against the individual defendants on qualified-immunity grounds, ruling that they had not robbed him of any clearly established right to publish the video — a decision driven by her belief that he had not cited precedent that even loosely applied to his facts. And she (to remind) dismissed the declaratory counts on mootness grounds, ruling that the retraction letter sent by the school committee's lawyer during the suit — confirming "that the [Eason-signed] letter . . . has been revoked and the [d]istrict will not take any criminal action against . . . Berge relating to the recording that took place inside the school administration building" in March 2022 — created "little chance" that defendants would respark this dispute.

Berge attacks, and defendants defend, each ruling. But based on our de novo review — see Eves, 927 F.3d at 578 (qualified immunity); Me. State Bldg. & Constr. Trades Council, AFL-CIO v. U.S. Dep't of...