Zieper v. Reno, No. Civ.99-5980(DRD).

111 F.Supp.2d 484

Michael ZIEPER, Mark Wieger, and Becamation, Plaintiffs, v. Janet RENO, in her official capacity as Attorney General of the United States, Louis Freeh, in his official capacity as Director of the Federal Bureau of Investigation, Mary Jo White, in her official capacity as United States Attorney for the Southern District of New York, Joseph Metzinger, individually and in his official capacity as Special Agent for the Federal Bureau of Investigation, and Lisa Korologos, individually and in her official capacity as Assistant United States Attorney for the Southern District of New York, Defendants.

No. Civ.99-5980(DRD).

United States District Court, D. New Jersey.

July 20, 2000.

As Amended August 14, 2000.

Lenora Lapidus, John C. Salyer, American Civil Liberties Union of New Jersey Foundation, Newark, New Jersey, Ann Beeson, Christopher A. Hansen, American Civil Liberties Union Foundation, New York City, for plaintiffs.

Robert J. Cleary, United States Attorney, by Michael A. Chagares, Assistant United States Attorney, Newark, New Jersey, Mary Hampton Mason, Torts Branch, Civil Division, United States Department of Justice, Washington, D.C., for defendants.

OPINION

DEBEVOISE, Senior District Judge.

Plaintiffs filed this civil rights action against the above-named government defendants, alleging violations of their First and Fifth Amendment rights to freedom of speech and procedural and substantive due process. Plaintiffs seek damages as well as injunctive and declaratory relief. Four motions are presently pending before the Court.

Alleging an ongoing violation of their rights, plaintiffs moved for leave to conduct expedited discovery in this matter. Plaintiffs' motion was granted and defendants moved for reconsideration of that order or for a stay of discovery pending resolution of their motion to dismiss. Defendants' motion for reconsideration has since been withdrawn as moot, but they maintain their request for a stay of discovery. Because defendants' motions to dismiss are resolved by this opinion, the motion for a stay of discovery pending resolution of those motions will be dismissed as moot.

As for the motions to dismiss, all of the defendants move to dismiss the complaint on the grounds of lack of standing and failure to state a cause of action. Defendants Lisa Korologos and Joseph Metzinger, sued individually and in their official capacities, have filed additional motions to dismiss asserting certain defenses personal to them. For the reasons set forth below, defendants' motions to dismiss the official capacity claims will be granted. Because the court lacks personal jurisdiction over defendant Korologos, the remaining claims will be transferred to the United States District Court for the Southern District of New York for further proceedings.

STATEMENT OF FACTS

On a motion to dismiss, all allegations set forth in the complaint must be accepted as true and all reasonable inferences must be drawn in the plaintiff's favor. Schrob v. Catterson, 948 F.2d 1402, 1405 (3d Cir.1991). Thus, the following facts are drawn from plaintiffs' complaint.

Plaintiff Michael Zieper is an independent filmmaker who lives in West Caldwell, New Jersey. He is the creator of a fictional short film titled "Military Takeover of New York City", consisting of daytime footage of Times Square accompanied by a voice-over of an actor portraying a military officer who debriefs other officers on a planned military takeover of the city on New Year's Eve ("the Film"). The Film is intentionally framed in a realistic style, with nothing to indicate that it is a fictional dramatization. The purpose of the Film, according to the complaint, was to raise issues about the then-upcoming millennium, Americans' distrust of government, and the use of racial hatred to manipulate the American people.

Plaintiff Mark Wieger lives in Edwardsburg, Michigan, and is the owner of a web hosting company, plaintiff BECamation.¹ Exhibition of movies on the Internet provides small filmmakers with an affordable alternative to other methods of distribution. After producing the film, Zieper contacted Wieger to arrange for placement of the Film on the Internet. Internet users were then able to view the Film by visiting a web site at http://www. crowdedtheater.com, which included an e-mail address, fire@crowdedtheater.com, for users who wanted to contact the film maker. The web site included a message stating:

Is there going to be a military takeover of New York City on New Year's Eve 1999? I don't know too much about this tape you are about to see. I got it from my cousin Steve who's in the army. He said that copies of this tape are floating around the base, and nobody knows who made it. If it's a fake, then there's nothing to worry about. If it's real, then we're in really big trouble.

Exhibition of the Film began on October 28, 1999, and it became the subject of several online discussion groups. The interest generated resulted in a television news story about the Film, including an interview with Zieper, which aired on UPN Channel 9 in the New York metropolitan area on November 10, 1999.

That same evening, Zieper, who was away from home, received a telephone call on his pager. When he returned the call, it was answered by a police officer who stated that he was standing at the door of Zieper's home in West Caldwell with agents from the Federal Bureau of Investigation. The agents, the police officer informed Zieper, wanted to speak with him about the Film. Zieper offered to call the next day to arrange a meeting with the FBI agents.

Zieper received a second page that evening from defendant Joseph Metzinger, a special agent with the Federal Bureau of Investigation. Metzinger explained that the FBI had received several calls about the Film from concerned citizens and businesses, and asked Zieper where he had obtained the video tape. At this point, Zieper decided to seek legal advice and asked Metzinger if he could return his call the following day. Metzinger agreed to this request, but asked if there was a way to prevent people from viewing the Film in the meantime. Zieper then mentioned the news story, and Metzinger asked Zieper to call the television station to stop the story from running.

The following day, Zieper consulted with attorneys and did not return the call to Metzinger. Metzinger left two messages, asking why Zieper had not called. Zieper's attorneys later called Metzinger, who told them that FBI agents had again been dispatched to Zieper's home. Over the next several days, Justice Department officials publicly stated that they were conducting an ongoing investigation into Zieper's activities.

Plaintiff Wieger received a call from Metzinger and defendant Lisa Korologos several days later, on November 15, 1999. They asked whether Wieger was the owner of the web site, and explained that they had traced the site to him through his business contacts. They further informed him that they had asked Online Marketing, the business from whom Wieger had leased the web site, to take the web site down if Wieger was unwilling to do so. Wieger asked whether they wanted him to block public access to the Film, and they said yes. Wieger complied with this request by disabling the link to the Film on the web site.

Wieger later called Korologos to ensure that he had complied with the request. He explained that he had disabled the link but that the Film could still be viewed by anyone who knew the exact web site address for the Film. Korologos asked whether the Film could be completely removed from the Internet. Wieger said that he would delete all of the files and remove the web site from his server, thereby preventing access to the Film and the web site entirely.

In their complaint, plaintiffs contend that these incidents resulted from "Project Megiddo," a Justice Department initiative to investigate and prosecute lawless actions, threats of lawless action, and incitement to lawless actions related to the arrival of the millennium. They contend that the policy or practice defined by Project Megiddo is so broad and vague that it permits the suppression of constitutionally protected speech.

STANDARD OF REVIEW

A complaint may be dismissed pursuant to Rule 12(b)(6), Fed.R.Civ.P., for failure to state a claim upon which relief can be granted if the court finds "beyond doubt that plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). In analyzing a motion to dismiss, all allegations set forth in the complaint must be accepted as true and all reasonable inferences must be drawn in the plaintiff's favor. Schrob v. Catterson, 948 F.2d 1402, 1405 (3d Cir.1991). A court should allow a plaintiff to amend the complaint instead of dismissing it where "a more carefully drafted complaint might state a claim upon which relief could be granted." Friedlander v. Nims, 755 F.2d 810, 813 (11th Cir. 1985); see Howze v. Jones & Laughlin Steel Corp., 750 F.2d 1208, 1212 (3d Cir. 1984).

DISCUSSION

A. Official Capacity Claims

Plaintiffs assert claims for declaratory and injunctive relief against each of the defendants in their official capacity. Specifically, plaintiffs are requesting an order:

1) declaring that the Film is protected by the First Amendment; 2) declaring that the defendants' actions violated plaintiffs' First and Fifth Amendment rights;

3) enjoining defendants from taking any further action to suppress the Film;

4) declaring that the policy or practice of defendants in taking actions that suppress constitutionally protected speech violates the First and Fifth Amendments, and;

5) enjoining defendants from continuing any policy or practice of taking actions that suppress constitutionally protected speech, including on the Internet.

In moving to dismiss plaintiffs' complaint, defendants begin by challenging plaintiffs' standing to...