A federal appeals court has sided with a Gloucester dad who recorded and posted a public interaction at the district’s superintendent’s office, declaring qualified immunity to school administrators a “textbook First Amendment violation.”
The U.S. Court of Appeals for the 1st Circuit has overturned a lower court’s ruling that granted qualified immunity to Gloucester school officials in their case against Inge Berge, the father of a middle schooler at the time of the video.
“Government retaliation against speech is unconstitutional,” Jaba Tsitsuashvili, an attorney with the Institute of Justice, wrote in a statement on Monday, “and the court of appeals made clear that qualified immunity won’t shield officials who happen to retaliate in novel ways.”
Berge wanted to buy tickets to his daughter’s middle school play in March 2022, but COVID-19 robbed him of the opportunity due to pandemic-era capacity restrictions. He then went to the superintendent’s office to complain about the policy and try to secure admission.
The father recorded the entire interaction, which lasted around six minutes and involved three officials.
Berge, describing himself as a citizen journalist, is heard in the video informing the officials that he was recording them which did not sit well with the superintendent and executive secretary. An assistant superintendent voiced no objection.
Berge posted the video on Facebook that day. Within hours, the district’s human resources director, Roberta Eason, sent the father a letter, demanding the video be removed immediately, and if not, he’d face legal action.
Eason cited the state’s wiretap law which she alleged Berge had violated by recording and posting the video “without the consent of all contributing parties.”
“Turns out she was way off base in relying on the wiretap act,” the 1st U.S. Circuit of Court Appeals wrote in its Monday ruling. “And that is because this law pertinently bans “secret” recordings, which Berge’s most certainly was not.”
That prompted Berge to file a First Amendment retaliation lawsuit in Massachusetts U.S. District Court.
A judge in the lower court dismissed the case, ruling that officials were protected by qualified immunity, meaning their conduct was not unconstitutional, preventing them from civil liability.
Berge appealed that ruling in March 2023 at the U.S. Court of Appeals for the 1st Circuit in Boston.
Judges with the higher court backed Berge’s actions, finding the father to have “very publicly recorded public officials performing public duties in the publicly accessible part of a public building.” They agreed with the intent as a “subject of legitimate news interest.”
“If the First Amendment means anything in a situation like this,” the judges wrote, “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.”
