Lawsuit Alleges Massachusetts School Officials Violated First Amendment By Abusing State’s Wiretap Law

An interesting case involving the First Amendment right to record is working its way through the federal court system. It involves a man who recorded his interactions with public school officials, posted that video to Facebook (along with his commentary), and was subsequently threatened with prosecution under Massachusetts’ oft-abused wiretap law.

The plaintiff, Inge Berge, is apparently not all the well-liked by Gloucester, Massachusetts officials. This is taken from his opposition [PDF] to the school officials’ motion to dismiss:

Some call Plaintiff Inge Berge (“Mr. Berge”) a “gadfly.” Others call him a “pain in the ass from Gloucester, Mass.” He calls himself a “citizen journalist.”

He is represented by Marc Randazza, who himself is often considered to be something of a pain in the ass/gadfly. Nevertheless, this case has plenty of merits, including a challenge of a law the First Circuit Court of Appeals found to be inapplicable when it came to recording public officials in public places.

We can call him what we like, but he immigrated to the United States to enjoy its civil liberties. When he sees these liberties threatened, he publishes to a wide audience, criticizing these threats.

Protecting civil liberties can often be the job of people others find immensely unlikable. In this case, Berge apparently forgot to get tickets for a school show involving his daughter and hoped to talk officials out of five more tickets for his family. The school had limited attendance to 175 people (in an auditorium capable of holding 300) to limit potential COVID-19 spread. This limitation was deployed despite the state having no current COVID restrictions on event attendance, and the fact that all ticket holders would be seated near the center of the auditorium in one large group rather than socially distanced. (As Randazza’s motion puts it, the policy “reduced access, but increased risk.”)

Berge entered the Gloucester School District’s administrative building accompanied by his desire to obtain tickets and his camera, the latter of which was in full display at all times. Berge informed each staff member he met that he was recording this interaction.

The Administrative Building is fully accessible to the public. It does have private offices therein, but the public-facing reception is neither a restricted area nor private area. Upon entering the building, and at all times, Mr. Berge held his camera out in the open, making it obvious to all that he was filming. When Mr. Berge entered the building, he was directed to Defendant Executive Secretary Stephanie Delisi (“Delisi”) and began a conversation with her by stating “I’m filming this, I’m doing a story on it.” Gregg Bach, the Assistant Superintendent of Teaching & Learning, then approached Mr. Berge and spoke with him regarding Mr. Berge’s attempt to attend his daughter’s play and the ticket policy. The two had a pleasant conversation, where Mr. Berge was clearly filming, and Bach had no objection. After his interview was complete, Mr. Berge left the building.

Berge was not greeted by any signage forbidding his recording of the publicly accessible office. Berge did not follow any official into their private office. For the most part, his recording was greeted with confusion and limited consternation. Officials who did not want to be filmed moved out of the area. Only one official (Stephanie Delisi) reacted oddly, screaming at Berge to stop. Berge posted his recording to Facebook. Shortly thereafter, he received a letter from the school officials demanding he take down the recording or face potential prosecution under the state’s wiretap law.

This demand letter (later retracted by the school after it was sued) obviously violates the First Circuit’s Glik decision. And the things said both when Berge was recording and in the defendants’ motion to dismiss [PDF] don’t change anything. The wiretap law addresses surreptitious recordings in private areas. It does not apply to openly recording public officials in publicly accessible areas.

Without any solid legal footing to work with, the defendants are flailing, as Randazza’s filing points out.

The Defendants admit that Mr. Berge was allowed to record, but they appear to argue that he came at the wrong time. Specifically, the Defendants argue that “[b]arring the recording of school business activities conducted in the Administration Office (whether open or secret) is a content-neutral restriction of general applicability.” What restriction? There was neither signage nor any other indication that video recording or photography was restricted. At no point while Mr. Berge was recording in the Administrative Building did anyone tell him there was a restriction.

Further, the Demand Letter made no mention of any formal restriction. The Defendants cite to no restriction in their motion. The government doesn’t get to just invent a policy out of thin air. Child Evangelism v. Montgomery Schools, 457 F.3d 376, 386 (4th Cir. 2006) (“Thus, there is broad agreement that, even in limited public and nonpublic forums, investing governmental officials with boundless discretion over access to the forum violates the First Amendment.”) (collecting cases). If any such policy exists now, it did not exist at the time of filming. The government does not get to parrot “content-neutral restriction” without such a restriction ever existing until Delisi flipped out at Mr. Berge. A government restriction is not created by a government employee simply shouting at a citizen.

Consistency is key to speech restrictions. They’re doomed to courtroom death without it. If there was anything in place that restricted Berge’s recording, the superintendent didn’t know what it was or when it was applicable. (Emphasis in the original.)

Based on the Superintendent’s own words, questioning Gloucester Public School officials and recording their answers is permitted in the Administrative Building at least some of the time. See (Motion at 4.) (“The Superintendent continued: ‘I’m happy to speak with you about O’Maley if you turn that off. You do not have my permission to film here right now.”) (emphasis added). The Superintendent’s statement indicates unbridled discretion, untethered from any policy, usually aimed at suppressing a particular viewpoint and unconstitutional under any standard of scrutiny.

Rights are guaranteed. Very limited restrictions are not.

Rights do not require permission. Under the Defendants’ purported amorphous policy, no woman could ever record herself asking a Senator their views on abortion in the U.S. Capitol if the Senator arbitrarily says ‘you do not have my permission to film here right now.’ The U.S. Constitution provides all the permission that Mr. Berge needed.

Unfortunately for Mr. Berge, ignorance of the law (by public officials) is sometimes an excuse. The defendants have asked for qualified immunity to be applied to their actions. According to the school officials, all previous First Amendment right-to-record precedent deals with recording police officers, so how were they to know these rulings might apply to other government employees.

The better argument is that the recording had no public interest angle. According to the motion to dismiss, Berge’s stated reason for entering the administration building was to “score five tickets” to an upcoming school event, something he admitted was his own fault. (“I’m so in the dog house with everyone because I didn’t get these tickets for opening night.“) It could be argued that this was a personal visit, despite Berge’s later statements to the superintendent about the stupidity of the limited seating policy.

But the court shouldn’t overlook the First Amendment forest for the school’s strategically placed trees. And dropping the threat of criminal charges shouldn’t be seen as an evaporation of the threat to free speech.

Voluntary cessation does not render a case moot unless the defendant meets the “formidable burden of showing that it is absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur.”

Defendants do not meet this burden; they merely shrug: this “is not the stuff of judicial avoidance.” (Motion at 19.) Only quite some time after Mr. Berge filed a complaint with this court did Defendants purportedly withdrawal the Demand Letter. Defendants went out of their way to harass Mr. Berge by sending the Demand Letter and attempting to chill his speech. Even in their motion to dismiss, Defendants continue to accuse Mr. Berge of illegal conduct in the making the Video and publishing it. Defendants’ conduct simply seeks to evade judicial review.

Even without the ongoing threat of prosecution, Berge’s speech is still potentially suppressed. The withdrawal of threatened criminal charges in this case does not mean the school will not try the same thing the next time Berge shows up with a camera. And, if the defendants are allowed to walk away from this lawsuit (via qualified immunity or other dismissal method), they’ll be even more likely to engage in the same behavior in the future, emboldened by their last escape from accountability.

Prior right-to-record decisions make it clear the findings of the First Circuit should be applied to all public officials, not just law enforcement officers. And the plain wording of the state wiretapping law shows it can only be applied to surreptitious recordings, which this certainly wasn’t. Hopefully the court will find in favor of Berge and make it extremely clear all Massachusetts public officials are subject to the Glik decision, not just those who carry badges and guns.