The U.S. Court of Appeals for the 1st Circuit sided with a Gloucester parent on Monday who recorded his conversations with school officials on video posted it on Facebook.
The case has drawn attention locally and nationally, particularly from free speech advocates, when the district demanded Berge take the video down and threatened legal action in 2022.
The appeals court decision also overturned a state district court ruling giving school officials “qualified immunity” or protection from a legal action initiated by Inge Berge, the parent.
“The case really boils down to the question of: can public officials threaten you with prosecution or some other adverse consequences just because you publish some speech that they don’t like?’” said Jaba Tsitsuashvili, an attorney with the Institute of Justice, a Virginia-based non-profit lawfirm. “As far as the First Amendment is concerned, it’s obviously no.”
The Institute did not represent Berge, but filed an amicus brief in support of his appeal.
Berge has said he wanted to buy tickets to his then middle school daughter’s play but couldn’t because of COVID-19 capacity restrictions. He went to the superintendent’s office to try to secure tickets, using his cellphone camera to record the episode.
Later the same day, Berge recorded the entire interaction that he posted to Facebook.
Hours later, Roberta Eason, the district’s human resources director, sent Berge a letter, claiming he had violated the state’s wiretapping law by recording the video without school officials’ consent and threatening legal action if he didn’t remove the video.
Berge did not immediately respond to requests for comment.
Tsitsuashvili said that Berge was recording the video openly and made school officials aware that he was recording them.
“This was an obviously inapplicable statute that the defendants were trying to weaponize to get Mr. Berge to take down his speech just because they didn’t want it up,” he said. “That effort of retaliation for the speech is what makes this a First Amendment violation.”
Berge proceeded to file a First Amendment lawsuit in Massachusetts’ U.S. District Court claiming retaliation.
The case was dismissed, and school officials were granted qualified immunity. But Berge appealed in March 2023.
Appeals court judges agreed that Berge “very publicly recorded public officials performing public duties in the publicly accessible part of a public building,” according to the ruling.
Tsitsuashvili said the case will return to trial court.
