A recent First Circuit case examined limitations on municipal officials in response to a posting on Facebook by a citizen. In Berge v. School Committee of Gloucester, No. 22-1954 (1st Cir. July 15, 2024), a journalist and parent in the community visibly filmed public employees in the school superintendent’s office and later posted the video on Facebook, hoping to "expose" the "unreasonableness" of the district's COVID-19 policy. Shortly after the posting, the Human Resources Director sent a letter to Berge accusing him of violating state wiretap law by not getting the officials’ consent prior to recording them and then posting the video. The letter threatened legal action if Berge did not take the video down. In response, Berge sued the school committee, as well as the officials in their individual capacity, alleging First Amendment retaliation when defendants threatened “bogus legal action” in an effort to suppress his First Amendment rights. The District Court granted the individual defendants qualified immunity. However, the First Circuit Court of Appeals overturned this decision. Because Berge’s actions did not actually violate the state wiretap law given that the filming was obvious, the threat of legal action under this law constituted First Amendment retaliation in violation of Berge's First Amendment right to publish on a matter of public concern. Where the officials had violated Berge’s First Amendment right that was clearly established, there was no protection of qualified immunity.
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