ARLINGTON, Va.—On Monday, the 1st U.S. Circuit Court of Appeals overturned a lower court’s ruling granting qualified immunity to school administrators in Gloucester, Massachusetts, who threatened a parent with legal action for recording and posting a public interaction with the superintendent’s office. The Institute for Justice (IJ), which submitted an amicus brief calling for the court to reverse the qualified immunity ruling, applauds the decision. 

“Yesterday’s ruling is based on the same principle as IJ’s victory at the Supreme Court earlier this year in Gonzalez v. Trevino, which made clear that government officials can’t use state laws as cover for retaliation against free speech,” said IJ Attorney Jaba Tsitsuashvili. “Government retaliation against speech is unconstitutional, and the court of appeals made clear that qualified immunity won’t shield officials who happen to retaliate in novel ways.”    

In March 2022, Inge Berge wanted to buy tickets to attend his daughter’s middle school play, but he missed out on the tickets because the school was limiting capacity due to COVID-19. Upset that he might miss his daughter’s play, he went to the superintendent’s office—which was open to the public—to complain about the policy and try to secure a ticket. Berge openly and obviously recorded his visit to the superintendent’s office and his discussion with the officials. He remained calm as he spoke with the officials, two of whom refused to talk while being recorded, and a third who said he would look into the situation. But later that day, after Berge posted the interaction on Facebook, the superintendent’s office sent him a letter demanding he remove the video or face legal repercussions. This blatant effort to suppress Berge’s speech was based on a statute that only prohibits “secret” recordings—but the letter itself made clear that there was nothing secret about what Berge did.   

Knowing his rights had been violated, Berge filed a First Amendment retaliation lawsuit. The school then rescinded its letter demanding he take the video down, but the district court dismissed Berge’s retaliation claims against the school administration. The court ruled that the officials were shielded by qualified immunity—a judicial doctrine that shields government officials from civil liability unless the unconstitutionality of their conduct was “clearly established”—because the facts of this case did not exactly match those of any prior case. As explained in IJ’s brief, that is not how the qualified immunity doctrine works, even in the face of its unjustified expansions. Well-established First Amendment principles put all public officials on notice that retaliation for speech is obviously unconstitutional. As IJ argued and as the court of appeals held, the novel circumstances of this case made the violation of those principles no less obvious. The school officials argued that previous case law regarding the right to publish recordings of government officials only dealt with the right to record police officers, so the unconstitutionality of other officials’ retaliatory conduct was not clearly established. But the court saw through that argument, saying: “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.”  

Those principles protect speakers of all stripes from being retaliated against for lawfully voicing their displeasure with government action.