1st Circuit: No Immunity For School Officials Who Abused Wiretap Law To Hassle Someone For Recording Them

I don’t know what the legislative intent of Massachusetts wiretapping law was, but I can’t possibly imagine it was erected solely to allow public employees to get people arrested for filming them performing their public duties in public places.

I mean, maybe it was. Maybe that’s the reason the law was enacted. But certainly no one was stating that as the impetus when crafting it. But that’s basically all it’s been used for. Cops have arrested residents for filming them during traffic stops. And, in this case, school administrators used it to threaten Gloucester resident Inge Berge with a possible arrest for daring to film them while confronting them in the public areas of their building.

Two-party consent is the name of the game here. The state law says both parties must consent to recordings, despite plenty of precedent saying otherwise when recordings involve public places and/or public servants.

Inge Berge was well-known by Gloucester public officials. They called him a “gadfly” and (less anachronistically) a “pain in the ass.” But they still chose to read the law as a protection for public officials against pains in the ass rather than what it was meant to be: a protection for regular people from surreptitious recordings.

Berge had entered the public area of the school district’s administrative building to confront administrators about some perceived injustice. In front of him, he held out his phone to record the confrontations. Some (mostly school officials) claimed Berge was simply there to bitch about not being able to obtain more tickets to a school event that had been recently limited by COVID complications. Berge maintains he was there to demand answers about the COVID restrictions themselves.

It doesn’t really matter. Berge plainly announced he was recording everything and anyone not wanting to be recorded simply could have retired to their offices. In response to his filming and confrontational attitude, officials first claimed Berge couldn’t record them, then produced a policy out of thin air (after being sued) that stated he was not allowed to record during the specific time he happened to have recorded them.

Berge’s lawsuit (filed by Marc Randazza’s law firm) got tossed roughly six months after it was filed. But it has been revived by the First Circuit Appeals, which correctly notes the law doesn’t say what these school officials want it to say. And it certainly doesn’t allow them to violate Berge’s First Amendment rights by demanding he remove a recording that [checks opinion] didn’t violate the state’s wiretap law. (h/t Jay Wolman)

As the ruling [PDF] points out, there’s more to the law than the two-party consent stipulation cited by one school administrator in a letter demanding Berge remove his recording from his Facebook page.

Citing Mass. Gen. Laws ch. 272, § 99(C), [district human resources director Roberta Eason] accused [Berge] 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).

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.

Not only was this a misreading of the state law, it demonstrated inexcusable incomprehension of basic First Amendment principles. Even if the law might have been able to be bent to fit this set of circumstances, it still wouldn’t have applied to Berge, whose recording dealt with issues of public interest, namely recently enacted policies in response to the pandemic.

And it’s obvious from the administrators’ actions that they only chose this course of action because they didn’t like Berge, his questions, and the subject matter of the conversations they clearly desired never to have.

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.

That revives Berge’s First Amendment retaliation claims. Of course, lawsuits can still be dodged if the court chooses to extend qualified immunity to those violating the Constitution, which is what the lower court chose to do. The First Circuit, however, isn’t going to compound this error.

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)).

That vacates part of the lower court decision, reviving the lawsuit and ensuring the involved officials will have to continue defending themselves against Berge’s allegations. However, his attempt to secure a permanent injunction against the district is rejected since the school withdrew its threat letter shortly after being sued and has made no further attempt to prevent Berge from publishing his recording.

Now, the officials still subject to the lawsuit can appeal this. And I kind of hope they do. The next stop would be the Supreme Court and a case like this has the potential to finally establish a First Amendment right to record across all circuits. At this point, pretty much every appellate court has ruled this right exists. But without a declaration from the top court in the land, petty fiefdoms and the people that run them can still claim that violations of a right most courts have ruled exists, doesn’t actually exist. And with that loophole, they can continue to abuse another favorite of rights violators: qualified immunity.