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
July 15, 2024
Hon. Angel Kelley, District Judge
Before Barron, Chief Judge, Thompson and Montecalvo, Circuit Judges.
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.
July 15, 2024
THOMPSON, Circuit Judge.
PREFACE
Among the many issues before us, the headline-grabbing one is this: On a motion to dismiss a case, see
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.
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
Turns out she was way off base in relying on the wiretap act. And that is because
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
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.
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
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 review8 — see Eves, 927 F.3d at 578 (qualified immunity); Me. State Bldg. & Constr. Trades Council, AFL-CIO v. U.S. Dep‘t of Lab., 359 F.3d 14, 17 (1st Cir. 2004) (mootness) — Berge prevails on the retaliation-count
(a) Retaliation Count
Rolling up our sleeves, we begin with primers on qualified-immunity and free-speech principles before ending with our analysis of the retaliation count‘s dismissal.
(i) Qualified-Immunity Primer
Qualified immunity seeks to balance two opposing interests: “the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.” Pearson v. Callahan, 555 U.S. 223, 231 (2009). The doctrine has its critics. See Zadeh v. Robinson, 902 F.3d 483, 498 (5th Cir. 2018) (Willett, J., concurring dubitante), modified on reh‘g, 928 F.3d 457, 474, 479-81 (5th Cir. 2019) (Willett, J., concurring in part and dissenting in part) (collecting sources). But here 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. See District of Columbia v. Wesby, 583 U.S. 48, 63 (2018) (emphasis added); see also Pearson, 555 U.S. at 236 (recognizing that judges can consider the two steps in any order); Perry v. Spencer, 94 F.4th 136, 146 (1st Cir. 2024) (en banc).
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.” Reichle v. Howards, 566 U.S. 658, 664 (2012) (alteration in original) (quotation marks omitted). Berge can satisfy that requirement by citing controlling caselaw — or a consensus of persuasive caselaw — finding a violation in a factually similar situation that places his right “beyond debate” (the point is he need not cite binding caselaw involving identical facts). See Wesby, 583 U.S. at 63. But he can also satisfy that requirement by citing a “general” standard “already identified in the decisional law” that “appl[ies] with obvious clarity to the specific conduct in question, even though the very action in question has [not] previously been held unlawful” (a rule that prevents absurd results). See Hope v. Pelzer, 536 U.S. 730, 741 (2002) (second alteration in original) (quotation marks omitted); see also, e.g., Sause v. Bauer, 585 U.S. 957, 959-60 (2018) (per curiam); Taylor v. Riojas, 592 U.S. 7, 8-9 (2020) (per curiam).9
The First Amendment (applicable to the states via the Fourteenth) protects the freedom of speech, a freedom that includes the right “to speak, write, print [and] distribute information or opinion.” Schneider v. New Jersey, 308 U.S. 147, 161 (1939).10 It protects the “right to gather news ‘from any source by means within the law,‘” a privilege that extends to non-journalists too. Glik v. Cunniffe, 655 F.3d 78, 82 (1st Cir. 2011) (quoting Houchins v. KQED, Inc., 438 U.S. 1, 11 (1978)); see also id. (adding that “[t]he filming of government officials engaged in their duties in a public place . . . fits comfortably within these principles“).
And its protections apply to the “vast democratic forums of the Internet,” Packingham v. North Carolina, 582 U.S. 98, 104 (2017) (quoting Reno v. ACLU, 521 U.S. 844, 868 (1997)), just as “they do to the bulletin boards or town halls of the corporeal world,” Garnier v. O‘Connor-Ratcliff, 41 F.4th 1158, 1185 (9th Cir. 2022), vacated on other grounds, 601 U.S. 202, 207-08 (2024).11
Listed “first for a reason,” see 141 Cong. Rec. S18059-02, S18061 (daily ed. Dec. 6, 1995) (statement of Sen. Bumpers), the First Amendment gives all of us — as players in the democratic process — space to ask public officials questions and to publish information from them without the threat of legal liability, see Lane v. Franks, 573 U.S. 228, 235-36 (2014); N.Y. Times Co. v. Sullivan, 376 U.S. 254, 269-83 (1964). “[I]t is only through [this] free debate and free exchange of ideas that government remains responsive to the will of the people and peaceful change is effected.” Terminiello v. City of Chicago, 337 U.S. 1, 4 (1949).12 So in such discussions “lies the security of the
“‘[N]ot all speech is of equal First Amendment importance,’ however, and where matters of purely private significance are at issue, First Amendment protections are often less rigorous.” Snyder v. Phelps, 562 U.S. 443, 452 (2011) (cleaned up). But speech on a “matter[] of public concern” is at the core of the First Amendment. Id. at 451-52 (quoting Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 758-59 (1985) (opinion of Powell, J.)). That because it “is more than self-expression; it is the essence of self-government.” Id. at 452 (quoting Garrison, 379 U.S. at 74-75). Which is why it deserves “special protection.” Connick v. Myers, 461 U.S. 138, 145 (1983).
So it should not be a surprise that the First Amendment grants a robust right to publish information of public concern, see Smith v. Daily Mail Publ‘g Co., 443 U.S. 97, 103 (1979) (affirming that “state officials may not constitutionally punish publication” of “lawfully obtain[ed] truthful information about a matter of public significance,” “absent a need to further a state interest of the highest order“) — even including material that someone else stole, certainly at least where the publisher had no hand in the theft.
Consider first N.Y. Times Co. v. United States (“Pentagon Papers“), 403 U.S. 713, 714 (1971) (per curiam), where the Supreme Court refused to enjoin the publication of purloined documents that two newspapers passively got from the purloiner. Dealing with expression at the very heart of the First Amendment — classified material about the country‘s involvement in the Vietnam War — the Court concluded that the government had not met its “heavy burden” of showing that the harm from publication might be sufficiently likely, imminent, and grave to justify a “prior restraint[]” (a fancy term for censorship). See id. (quotation marks omitted).
Consider also Bartnicki v. Vopper, 532 U.S. 514, 518, 524-25, 527-35 (2001), where the Court held that the First Amendment protected the publication of an illegally recorded communication of public concern — a private chat about a dispute between a public union and a school district — obtained by the publisher lawfully but by a source illegally, even though the publisher knew or should have known about the source‘s law-breaking. “[P]rivacy concerns g[a]ve way when balanced against the interest in publishing matters of public importance,” the Court said (as it also left open whether the government can punish a publisher who “acquired” the at-issue material “unlawfully“). Id. at 528, 534 (emphasizing that “[o]ne of the costs associated with participation in public affairs is an attendant loss of privacy“).
And consider now Jean v. Mass. State Police, 492 F.3d 24, 25, 30-33 (1st Cir. 2007), where we (applying Bartnicki) held that the First Amendment protected an internet posting of public-concern material — a secretly-recorded police arrest and search of a private home. We ruled that way even though the poster had “reason to know” that the source had “illegally recorded” the events, and even though the poster had “arguably participated . . . in a conspiracy to disclose” the video but had “played no part” in the source‘s illegal recording.
What
First Amendment freedoms are not without limits, however (as we intimated in the explanatory parenthetical appended to our Daily Mail cite). See id. at 456. In some situations, for example, a person‘s “choice of where and when” to speak “is not beyond the [g]overnment‘s regulatory reach” — provided the “time, place, or manner restrictions” satisfy certain requirements (none relevant here). See id. (quoting Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293 (1984)).
(iii) Analysis15
Addressing step one of the qualified-immunity analysis, we — after taking Berge‘s allegations as true (though knowing that discovery or trial evidence may cast the case in a different light) — have a hard time picturing a more textbook First Amendment violation.
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 (to quote again from the complaint) of “expos[ing] and comment[ing] on the unreasonableness” of those “polic[ies].” See Citizens United v. FEC, 558 U.S. 310, 339 (2010) (remarking that “[t]he right of citizens to inquire, to hear, to speak, and to use information to reach consensus is a precondition to enlightened self-government and a necessary means to protect it“). And his speech (front and center in the complaint) about COVID-19 protocols — the kind that has sparked much political and social debate (and litigation too) — strikes us as sufficiently “a subject of legitimate news interest” to come within the sphere of public concern.
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. See Nieves v. Bartlett, 139 S. Ct. 1715, 1722 (2019) (reminding that the First Amendment “‘generally‘” bans “‘government officials from subjecting an individual to retaliatory actions’ for engaging in protected speech” (quoting Hartman v. Moore, 547 U.S. 250, 256 (2006))); Sullivan, 376 U.S. at 269-70 (warning that government officials cannot try to censor or suppress speech they dislike just because they dislike it); see also Gericke v. Begin, 753 F.3d 1, 6 (1st Cir. 2014) (stressing that “[r]etaliation is always reprehensible” and that “it is obviously improper for officers to invoke [legal processes] for retaliatory purposes“). “[T]o prevent the pursuit of legal action in this matter,” the Eason-signed letter “demand[ed]” that Berge “immediately remove the [video] from [his] Facebook account and/or any other communications.” Which shows the complaint plausibly alleges that the individual defendants knew the legal-action threat centered on Berge‘s right to publish. What is more — and as already explained — the letter cited the state wiretap act as the only basis for the removal demand (no one defends the threat on any other ground). But — as also earlier noted — the wiretap act only bans “secret” recordings (in which the persons recorded did not know they were being recorded) and thus does not apply here. See Curtatone, 169 N.E.3d at 484. Which shows the complaint plausibly alleges that the individual defendants knew such action was baseless.
And none of the individual defendants’ comebacks compels a different conclusion.
For starters, the individual defendants write that “if” — as Berge seems to “insist[]” — a First Amendment right to record “his visit” is a prerequisite to Berge‘s First Amendment “claim for a right to publish,” then the judge correctly dismissed the retaliation count because Berge had no First Amendment right to record (emphasis added). In other words — at least according to the individual defendants — “[w]ithout a viable” First Amendment “right to record,” Berge‘s Facebook posting “enjoys no First Amendment protection.” But as Berge‘s appellate papers point out, “this is a right to publish case” — without a distinct “claim over [a] right to record.” And as Berge‘s counsel indicated at oral argument, we need not — given the case‘s posture — decide whether Berge had a First Amendment right to record. So even if Berge had no First Amendment right to record (and we express no opinion either way), that would not mean — given the complaint‘s facts — that the individual defendants could then baselessly burden his First Amendment right to publish.
On the right-to-publish issue, the individual defendants contend that because Berge wanted tickets to his daughter‘s play, his “visit” focused on his concerns rather than the public‘s — meaning (the argument continues) his speech fell outside the scope of the First Amendment. But some topics can both affect a party‘s personal interests and concern public affairs, yet still — just like Berge‘s COVID-19-related speech — land on the protected side of the line. See Connick, 461 U.S. at 146-47 (underscoring that speech of public concern relates to “political, social, or other concern to the community,”
Shifting then from qualified immunity‘s step one (constitutional rights violation) to step two (clearly established law), we also think it follows naturally from the above cases that Berge has plausibly pled a violation of a clearly established right to publish on a topic of public interest when the violators acted (as a reminder, but using a different case quote, a right is “clearly established” when it is no longer among the “hazy” area of constitutional issues that might be “reasonably misapprehend[ed].” See Brosseau v. Haugen, 543 U.S. 194, 198 (2004) (per curiam)). And by “acted” we mean (as the complaint alleges) threatening Berge with an obviously groundless legal action: Surely no sensible official reading these long-on-the-books opinions could believe that that act — assuming it represents an adverse action — was not a burden on Berge‘s First Amendment right to publish on a matter of public concern. So given all this, Berge‘s complaint plausibly alleges that the threat constituted First Amendment retaliation in violation of his clearly established right.
And the individual defendants’ pushback does not go far.
Convinced that Berge “failed to meet his burden of showing” a violation of “any clearly-established First Amendment right to publish his recording,” the individual defendants — sort of echoing the district judge — fault him for not citing a case showing that he could record and publish “non-law enforcement personnel (such as school administrators) performing official duties in a limited or non-public forum where reasonable, viewpoint-neutral restrictions on speech are routinely permitted.” But a “directly” on-point case is “not require[d].” al-Kidd, 563 U.S. at 741. We say that because the general constitutional rules highlighted above — including (for example) that “the First Amendment prohibits government officials from subjecting an individual to retaliatory actions . . . for speaking out,” see Hartman, 547 U.S. at 256 (emphasis added) — are so clear that (even without a pre-existing case involving the same facts, and still assuming the threatened legal action would constitute an adverse action) the unlawfulness of what occurred is apparent, see Morse v. Cloutier, 869 F.3d 16, 29 (1st Cir. 2017) (citing United States v. Lanier, 520 U.S. 259, 271 (1997)).
In addition to repeating an already-rejected argument — that the complaint‘s facts put Berge‘s speech on the “purely personal” rather than “public concern” side of the constitutional divide (our rejection reasons appear four paragraphs above) — the individual defendants lean on Pitta v. Medeiros, 90 F.4th 11 (1st Cir. 2024). But Pitta did not involve alleged retaliation against the plaintiff‘s right to publish but instead supposed retaliation against his right to record. So that case has no bearing on our analysis.
All to say: We cannot now hold the individual defendants qualifiedly immune on the retaliation count and so vacate the judge‘s dismissal of count 1 against them.
(b) Declaratory Counts
We can make quicker work of the parties’ fight over the dismissal of the declaratory counts on mootness grounds. An initial point of clarification, though. Berge‘s briefs claim that the retraction letter — affirming “that the [Eason-signed] letter . . . has been revoked and the [d]istrict will not take any criminal action against . . .
Now and then real-world events “overtake” courtroom events in a way that lets the “complaining party” get “outside of litigation all the relief he might have won in it.” FBI v. Fikre, 144 S. Ct. 771, 777 (2024). When that occurs, we judges “must dismiss the case [or part of the case] as moot” — “must dismiss” because a moot dispute is not a live dispute, which makes a federal court‘s jurisdiction evaporate. Id. (emphasis added); see also Already, LLC v. Nike, Inc., 568 U.S. 85, 90-91 (2013) (stressing that a dispute must stay live during all stages of litigation, not just when the complaint gets filed). Exactly so here, defendants argue, because (in their mind) the retraction letter and oral-argument representations voluntarily give Berge all the relief sought in his declaratory counts — thus justifying the counts’ dismissal. Berge counters by invoking the “voluntary cessation” doctrine, a “stringent” exception to mootness. See Friends of the Earth, Inc. v. Laidlaw Env‘t Servs. (TOC), Inc., 528 U.S. 167, 189 (2000). Taking a de novo view of the matter, see Bos. Bit Labs, Inc. v. Baker, 11 F.4th 3, 8 (1st Cir. 2021), we this time side with defendants.
A defendant‘s voluntarily ending an unconstitutional practice may not moot a case if the plaintiff‘s alleged injury may happen again. See, e.g., Friends of the Earth, 528 U.S. at 190 (proclaiming that a defendant invoking the voluntary-cessation doctrine “bears the formidable burden of showing that it is absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur“). But given defendants’ withdrawal letter and open-court representations, we think they have made it absolutely clear that they will not repeat the challenged behavior. That Berge intends to continue making and publishing recordings of “his anticipated future communications with [d]efendants” (a quote lifted from his declaratory counts) does not change the result either. Given today‘s holding that his complaint (considered in the right light) paints a picture of unconstitutional retaliation, we see no reason to suspect that defendants will ignore binding precedent and repeat the alleged wrong. See generally Resurrection Sch. v. Hertel, 35 F.4th 524, 529 (6th Cir. 2022) (en banc) (finding the “prospect” that officials would return to their old ways “exceedingly remote” partly because of binding precedent published after the controversy originally erupted). And his other ideas — like his saying that defendants’ “representation[s]” do not “bind them to not cooperate with any action” a prosecutor “might take” — are too speculative to revive these otherwise-moot counts. See Calvary Chapel of Bangor v. Mills, 52 F.4th 40, 50 (1st Cir. 2022).
Bottom line: We must hold the declaratory counts moot and so affirm the judge‘s dismissal of those counts.
Motion‘s Denial
Even less need be said about the judge‘s decision stamping “moot” Berge‘s motion for a temporary restraining order and preliminary injunction. Berge himself notes that his motion sought to “bar[]” defendants “from threatening or coercing him
Net result: We must deem the motion for a temporary restraining order and preliminary injunction moot and so affirm the judge‘s denial of that motion.
WHAT THIS ALL MEANS
We vacate the judgment dismissing the retaliation count against the individual defendants and remand with directions to reinstate that count against them. But we affirm the dismissal of the retaliation count against the school committee. We also affirm the judgment dismissing the declaratory counts. And we affirm as well the denial of the motion for a temporary restraining order and preliminary injunction.16
Vacated in part, affirmed in part, and remanded for further proceedings. Berge shall recover his costs on appeal.
Notes
This letter is in response to your Facebook posting of a recording taken by you today without the consent of all parties at the Gloucester Public Schools Administration Building. Please be advised that Massachusetts recording law stipulates that it is a two-party consent state. In Massachusetts, it is a criminal offense to use any device to record and/or disseminate communications, whether the communications are by wire, oral or electronic, without the consent of all contributing parties.
Mass. Ann. Laws. ch. 272, § 99(C) . This means that in Massachusetts you are prohibited from recording a conversation you are taking part in unless all parties are in agreement. Ms. Delisi unambiguously told you that she was not consenting to being recorded. We demand that you immediately remove the post from your Facebook account and/or any other communications to prevent the pursuit of legal action in this matter.