United States Court of Appeals For the First Circuit
No. 22-1954
INGE BERGE,
Plaintiff, Appellant,
v.
SCHOOL COMMITTEE OF GLOUCESTER; BEN LUMMIS, in his personal capacity; ROBERTA A. EASON, in her personal capacity; and STEPHANIE DELISI, in her personal capacity,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Angel Kelley, District Judge]
Before
Barron, Chief Judge, Thompson and Montecalvo, Circuit Judges.
Marc J. Randazza, with whom Jay M. Wolman, Robert J. Morris II, and Randazza Legal Group, PLLC were on brief, for appellant. John J. Davis, with whom Pierce Davis & Perritano LLC was on brief, for appellees. Anna J. Goodman, Jaba Tsitsuashvili, Patrick Jaicomo, Anna Bidwell, Institute for Justice, Ronald London, and Foundation for Individual Rights and Expression, amici curiae. Alexandra Arnold, Ruth A. Bourquin, Matthew R. Segal, American Civil Liberties Union Foundation of Massachusetts, Inc., and The New England First Amendment Coalition, amici curiae. Jennifer Safstrom, Stanton Foundation First Amendment Clinic at Vanderbilt Law School, Mickey H. Osterreicher, and National Press Photographers Association, amici curiae. July 15, 2024 THOMPSON, Circuit Judge.
PREFACE
Among the many issues before us, the headline-grabbing
one is this: On a motion to dismiss a case, see Fed. R. Civ. P.
12(b)(6), does qualified immunity protect public officials who
baselessly threatened a citizen-journalist with legal action if he
did not remove a video on a matter of public concern that he made
and posted on Facebook without breaking any law?1 We answer no,
for reasons shortly stated (we also address some perhaps-less-
exciting-but-still-very-important mootness questions before
signing off).
HOW THE CASE CAME TO US
Accepting the facts in the complaint and incorporated
materials as true and relying on concessions made in the opposition
to the motion to dismiss, see, e.g., Eves v. LePage, 927 F.3d 575,
578 n.2 (1st Cir. 2019); Schatz v. Republican State Leadership
Comm., 669 F.3d 50, 55-56 (1st Cir. 2012), the following story
unfolds.
1 Anyone wishing to see the recording can go to Inge Berge, Facebook (Mar. 3, 2022, 1:37 PM), https://www.facebook.com/inge.berge.9/videos/1571702173204109. And just as a heads-up for the legal neophytes out there, qualified immunity gives officials cover when they decide close questions in reasonable (even if ultimately wrong) ways — sparing them from money-damages liability unless they violated a statutory or constitutional right that was clearly established at the time (much more on all that soon). See, e.g., Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011).
- 3 - Encounter
Inge Berge is a citizen-journalist living in Gloucester,
Massachusetts.2 Back in early March 2022, he went to the city's
school superintendent's office — which is open to the public
(during specified hours, we presume). He wanted to buy tickets to
his daughter's sold-out school play. And he wanted to hear from
officials why the school's COVID-19 rules still capped the number
of play-goers when the state had already lifted its COVID-19
mandates by then.
Visibly filming as he went along (he kept his camera out
for all to see), Berge made sure to also tell everyone he met that
he was recording. And no sign banned or restricted filming in the
building's publicly accessible areas either.
Talking to executive secretary Stephanie Delisi, Berge
said, "I'm filming this. I'm doing a story on it. If that's okay
with you." "No, no I don't want to be filmed," Delisi answered
back. Berge kept openly filming. Delisi then walked into
superintendent Ben Lummis's office.
Standing at the door of his office, Lummis asked Berge
to stop recording. "You do not have permission to film in this
2 Broadly speaking (because there is no all-inclusive definition), a citizen-journalist is like an unpaid freelancer who uses digital media to report on newsworthy events. See William R. Montross, Jr. & Patrick Mulvaney, Virtue and Vice: Who Will Report on the Failings of the American Criminal Justice System?, 61 Stan. L. Rev. 1429, 1459-60 (2009).
- 4 - area." Berge kept openly filming. "I'm happy to speak with you,"
Lummis added, "if you turn that off." "You do not have my
permission to film here right now," Lummis said as well. Berge
kept openly filming. And Lummis closed his office door.
Assistant superintendent Gregg Bach then walked over to
Berge. And with Berge still openly filming, Bach took notes about
Berge's bid to see his daughter's play. Unlike the others, Bach
voiced no objection to Berge's filming.
Hoping to "expose" the "unreasonableness" of the
district's "policy," Berge uploaded the video (along with his
commentary) to Facebook that very day. And he made the material
publicly viewable as well.
None too pleased, district-human-resources director
Roberta Eason fired off a letter to Berge within hours. Citing
Mass. Gen. Laws ch. 272, § 99(C), she accused him 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).3
3 Because of its importance, we quote the letter's body in full:
This letter is in response to your Facebook posting of a recording taken by you today without the consent of all parties at the Gloucester Public Schools
- 5 - 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. See, e.g.,
Curtatone v. Barstool Sports, Inc., 169 N.E.3d 480, 483-84 (Mass.
2021) (emphasis added) (concluding that the plaintiff's wiretap
act claim failed after noting that the defendant-interviewer "did
not secretly hear or record the challenged communication" within
act's "plain meaning" since "plaintiff knew throughout the call
that his words were being heard and recorded").
Federal Lawsuit
Berge did not do as directed, however. He instead sued
the Gloucester school committee, plus Lummis, Eason, and Delisi in
their individual capacities. His operative complaint alleges four
counts (we simplify our description, but without affecting our
analysis). Count 1 presses a claim of First Amendment retaliation
Administration Building. Please be advised that Massachusetts recording law stipulates that it is a two- party consent state. In Massachusetts, it is a criminal offense to use any device to record and/or disseminate communications, whether the communications are by wire, oral or electronic, without the consent of all contributing parties. Mass. Ann. Laws. ch. 272, § 99(C). This means that in Massachusetts you are prohibited from recording a conversation you are taking part in unless all parties are in agreement. Ms. Delisi unambiguously told you that she was not consenting to being recorded.
We demand that you immediately remove the post from your Facebook account and/or any other communications to prevent the pursuit of legal action in this matter.
- 6 - under 42 U.S.C. § 1983 (which allows a plaintiff to sue persons
who, acting under the color of state law, violated the plaintiff's
federal constitutional or statutory rights. See Martin v. Somerset
Cnty., 86 F.4th 938, 943 (1st Cir. 2023)).4 According to that
count, defendants threatened "bogus legal" action under the state
wiretap act to "frighten him into suppressing his own First
Amendment rights." Counts 2 through 4 seek declarations that Berge
"had a First Amendment right to publish" his video and that he
violated neither the state wiretap act nor the federal Family
Educational Rights and Privacy Act ("FERPA," which relevantly bars
schools from unilaterally disclosing sensitive education records,
see 20 U.S.C. § 1232g(b)).5 Each declaratory count alleges that
he "desires to continue to record and publish videos, with audio
included, of his anticipated future communications with
[d]efendants." And each also alleges that by "falsely accus[ing]"
him of breaking the law and making a mockery "of his First
Amendment rights," defendants put him "in fear of prosecution" and
4 To state such a claim, a plaintiff like Berge must plead that he engaged in First Amendment-protected conduct, that he suffered an adverse action, and that his protected conduct played a "substantial or motivating" part in the adverse action. See, e.g., Gattineri v. Town of Lynnfield, 58 F.4th 512, 514 (1st Cir. 2023). 5 Berge claims that defendants "accuse[d]" him of violating FERPA at some point during this period.
- 7 - "directly harm[ed] . . . his reputation." The complaint requests
damages, declaratory and injunctive relief, and attorney fees.
Along with his complaint, Berge filed a motion for a
temporary restraining order and preliminary injunction.6
Spotlighting the Eason-signed letter, the motion asked the
district judge to stop defendants "from threatening or attempting
to coerce [him] into removing his First Amendment-protected
speech."
Days later (after Berge had served the complaint), the
school committee's lawyer phoned Berge's to say that the district
had withdrawn the Eason-signed letter. In a written follow-up,
the school committee's attorney confirmed "that the [Eason-signed]
letter . . . has been revoked and the [d]istrict will not take any
criminal action against . . . Berge relating to the recording that
took place inside the school administration building" in early
March 2022.
Also around this same time, Berge's lawyer emailed the
school committee's to say that "[w]e have accepted, for the sake
of peace at this time, your position that there was no First
Amendment right to record in that office" — adding that "[w]e do
6 A temporary restraining order and (ultimately) a preliminary injunction preserve the status quo during the pendency of trial- court proceedings. See Granny Goose Foods, Inc. v. Bhd. of Teamsters & Auto Truck Drivers Loc. No. 70 of Alameda Cnty., 415 U.S. 423, 439 (1974) (temporary restraining order); Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981) (preliminary injunction).
- 8 - disagree, but had not sought your admission of this, nor do we
bring that claim in the [operative] complaint[]." The email then
insisted that "Berge had a First Amendment right to publish the
video." So "[e]ven if" he "unlawfully made" the video, the email
continued, "he would still have a First Amendment right to publish
it" — "[t]he legal threat was that he would be prosecuted if he
did not cease publication of the video."
Before answering the complaint, defendants asked the
district judge to dismiss the suit for not stating a claim for
which relief could be granted. See Fed. R. Civ. P. 12(b)(6).
Berge opposed the motion. But the judge tossed the case.
Pertinently for our purposes, she first granted the individual
defendants qualified immunity on the retaliation count. As she
saw things, existing law did not clearly establish a First
Amendment right to publish the video because Berge had not offered
any "precedent even vaguely applicable to the facts" presented
here. She next labeled the declaratory counts moot because
defendants had revoked the Eason-signed letter. And she saw
"little chance" that, after the case's "dismissal," they would
"send a subsequent demand letter to reignite this controversy" —
principally because they "have agreed to take no further action."
- 9 - She also denied the motion for a temporary restraining order and
preliminary injunction as moot.7
Berge timely appealed the complaint's dismissal and the
motion's denial.
OUR TAKE ON THE SITUATION
Complaint's Dismissal
The judge (to repeat) dismissed Berge's First Amendment
retaliation count against the individual defendants on qualified-
immunity grounds, ruling that they had not robbed him of any
clearly established right to publish the video — a decision driven
by her belief that he had not cited precedent that even loosely
applied to his facts. And she (to remind) dismissed the
declaratory counts on mootness grounds, ruling that the retraction
letter sent by the school committee's lawyer during the suit —
confirming "that the [Eason-signed] letter . . . has been revoked
and the [d]istrict will not take any criminal action against . . .
7 A restless reader might wonder about Berge's First Amendment retaliation claim against the school committee. Such a municipal entity — which (unlike public officials) does not enjoy qualified immunity — may be liable under § 1983 when its policy or custom inflicts the constitutional injury. See Fitzgerald v. Barnstable Sch. Comm., 555 U.S. 246, 257-58 (2009); Haley v. City of Bos., 657 F.3d 39, 51 (1st Cir. 2011). The judge provided no analysis on that front, however. But because Berge does not complain about the omission, he waived any argument he might have. See, e.g., Rodríguez v. Mun. of San Juan, 659 F.3d 168, 175-76 (1st Cir. 2011). On top of that, his reply brief concedes that "no" municipal policy or custom motivated the unlawful conduct — and that therefore the school committee cannot be sued under § 1983.
- 10 - Berge relating to the recording that took place inside the school
administration building" in March 2022 — created "little chance"
that defendants would respark this dispute.
Berge attacks, and defendants defend, each ruling. But
based on our de novo review — see Eves, 927 F.3d at 578 (qualified
immunity); Me. State Bldg. & Constr. Trades Council, AFL-CIO v.
U.S. Dep't of Lab., 359 F.3d 14, 17 (1st Cir. 2004) (mootness) —
Berge prevails on the retaliation-count ruling but not on the
declaratory-counts ruling.8
(a) Retaliation Count
Rolling up our sleeves, we begin with primers on
qualified-immunity and free-speech principles before ending with
our analysis of the retaliation count's dismissal.
(i) Qualified-Immunity Primer
Qualified immunity seeks to balance two opposing
interests: "the need to hold public officials accountable when
they exercise power irresponsibly and the need to shield officials
from harassment, distraction, and liability when they perform
their duties reasonably." Pearson v. Callahan, 555 U.S. 223, 231
(2009). The doctrine has its critics. See Zadeh v. Robinson, 902
8 De novo review means review without deference to the district judge's views. See, e.g., Reyes-Colón v. United States, 974 F.3d 56, 60 (1st Cir. 2020).
- 11 - F.3d 483, 498 (5th Cir. 2018) (Willett, J., concurring dubitante),
modified on reh'g, 928 F.3d 457, 474, 479-81 (5th Cir. 2019)
(Willett, J., concurring in part and dissenting in part)
(collecting sources). But here it shields the individual
defendants unless Berge pled facts — adopted as true — showing
that (1) they violated a constitutional guarantee that (2) was not
only established but "clearly established" when they acted. See
District of Columbia v. Wesby, 583 U.S. 48, 63 (2018) (emphasis
added); see also Pearson, 555 U.S. at 236 (recognizing that judges
can consider the two steps in any order); Perry v. Spencer, 94
F.4th 136, 146 (1st Cir. 2024) (en banc).
A right is clearly established if it was "sufficiently
clear that every reasonable official would [have understood] that
what he is doing violates that right." Reichle v. Howards, 566
U.S. 658, 664 (2012) (alteration in original) (quotation marks
omitted). Berge can satisfy that requirement by citing controlling
caselaw — or a consensus of persuasive caselaw — finding a
violation in a factually similar situation that places his right
"beyond debate" (the point is he need not cite binding caselaw
involving identical facts). See Wesby, 583 U.S. at 63. But he
can also satisfy that requirement by citing a "general" standard
"already identified in the decisional law" that "appl[ies] with
obvious clarity to the specific conduct in question, even though
the very action in question has [not] previously been held
- 12 - unlawful" (a rule that prevents absurd results). See Hope v.
Pelzer, 536 U.S. 730, 741 (2002) (second alteration in original)
(quotation marks omitted); see also, e.g., Sause v. Bauer, 585
U.S. 957, 959-60 (2018) (per curiam); Taylor v. Riojas, 592 U.S.
7, 8-9 (2020) (per curiam).9
(ii) Free-Speech Primer
The First Amendment (applicable to the states via the
Fourteenth) protects the freedom of speech, a freedom that includes
the right "to speak, write, print [and] distribute information or
opinion." Schneider v. New Jersey, 308 U.S. 147, 161 (1939).10 It
protects the "right to gather news 'from any source by means within
the law,'" a privilege that extends to non-journalists too. Glik
v. Cunniffe, 655 F.3d 78, 82 (1st Cir. 2011) (quoting Houchins v.
KQED, Inc., 438 U.S. 1, 11 (1978)); see also id. (adding that
9 Suits involving obviously unlawful acts do not land on our docket every day. See, e.g., Safford Unified Sch. Dist. No. 1 v. Redding, 557 U.S. 364, 377-78 (2009). So a plaintiff will have a harder time finding factually similar caselaw in that scenario than in one involving closer legal questions. See id. And it would be more than a little strange "if the most obviously unconstitutional conduct should be the most immune from liability only because it is so flagrantly unlawful that few dare its attempt." Browder v. City of Albuquerque, 787 F.3d 1076, 1082-83 (10th Cir. 2015) (Gorsuch, J., for the panel); see also Redding, 557 U.S. at 377-78. 10 Unless of course the speech falls into one of the Amendment's few categorical limits, like obscenity or incitement to crime. See, e.g., United States v. Stevens, 559 U.S. 460, 468 (2010).
- 13 - "[t]he filming of government officials engaged in their duties in
a public place . . . fits comfortably within these principles").
And its protections apply to the "vast democratic forums of the
Internet," Packingham v. North Carolina, 582 U.S. 98, 104 (2017)
(quoting Reno v. ACLU, 521 U.S. 844, 868 (1997)), just as "they do
to the bulletin boards or town halls of the corporeal world,"
Garnier v. O'Connor-Ratcliff, 41 F.4th 1158, 1185 (9th Cir. 2022),
vacated on other grounds, 601 U.S. 202, 207-08 (2024).11
Listed "first for a reason," see 141 Cong. Rec. S18059-
02, S18061 (daily ed. Dec. 6, 1995) (statement of Sen. Bumpers),
the First Amendment gives all of us — as players in the democratic
process — space to ask public officials questions and to publish
information from them without the threat of legal liability, see
Lane v. Franks, 573 U.S. 228, 235-36 (2014); N.Y. Times Co. v.
Sullivan, 376 U.S. 254, 269-83 (1964). "[I]t is only through
[this] free debate and free exchange of ideas that government
remains responsive to the will of the people and peaceful change
is effected." Terminiello v. City of Chicago, 337 U.S. 1, 4
11 See also Brown v. Ent. Merchs. Ass'n, 564 U.S. 786, 790 (2011) (saying that "whatever the challenges of applying the Constitution to ever-advancing technology, 'the basic principles of freedom of speech and the press, like the First Amendment's command, do not vary' when a new and different medium for communication appears" (quoting Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 503 (1952))).
- 14 - (1949).12 So in such discussions "lies the security of the
Republic, the very foundation of constitutional government." De
Jonge v. Oregon, 299 U.S. 353, 365 (1937).
"'[N]ot all speech is of equal First Amendment
importance,' however, and where matters of purely private
significance are at issue, First Amendment protections are often
less rigorous." Snyder v. Phelps, 562 U.S. 443, 452 (2011)
(cleaned up). But speech on a "matter[] of public concern" is at
the core of the First Amendment. Id. at 451-52 (quoting Dun &
Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 758-
59 (1985) (opinion of Powell, J.)). That is because it "is more
than self-expression; it is the essence of self-government." Id.
at 452 (quoting Garrison, 379 U.S. at 74-75). Which is why it
12 See also Branzburg v. Hayes, 408 U.S. 665, 681 (1972) (emphasizing that newsgathering and reporting get First Amendment protection because without them "freedom of the press could be eviscerated"); First Nat'l Bank of Bos. v. Bellotti, 435 U.S. 765, 783 (1978) (noting that "the First Amendment goes beyond protection of the press and the self-expression of individuals to prohibit government from limiting the stock of information from which members of the public may draw"); Garrison v. Louisiana, 379 U.S. 64, 77 (1964) (recognizing that the First Amendment secures "the paramount public interest in a free flow of information to the people concerning public officials, their servants"); Schneider, 308 U.S. at 161 (stating that "the freedom of speech and that of the press [are] fundamental personal rights and liberties" that sit "at the foundation of free government" (footnote omitted)); Whitney v. California, 274 U.S. 357, 375 (1927) (Brandeis, J., concurring) (pointing out that the First Amendment's drafters thought "that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle" of our Nation).
- 15 - deserves "special protection." Connick v. Myers, 461 U.S. 138,
145 (1983).
So it should not be a surprise that the First Amendment
grants a robust right to publish information of public concern,
see Smith v. Daily Mail Publ'g Co., 443 U.S. 97, 103 (1979)
(affirming that "state officials may not constitutionally punish
publication" of "lawfully obtain[ed] truthful information about a
matter of public significance," "absent a need to further a state
interest of the highest order") — even including material that
someone else stole, certainly at least where the publisher had no
hand in the theft.
Consider first New York Times Co. v. United States
("Pentagon Papers"), where the Supreme Court refused to enjoin the
publication of purloined documents that two newspapers passively
got from the purloiner. 403 U.S. 713, 714 (1971) (per curiam).
Dealing with expression at the very heart of the First Amendment
— classified material about the country's involvement in the
Vietnam War — the Court concluded that the government had not met
its "heavy burden" of showing that the harm from publication might
be sufficiently likely, imminent, and grave to justify a "prior
restraint[]" (a fancy term for censorship). See id. (quotation
marks omitted).
Consider also Bartnicki v. Vopper, where the Court held
that the First Amendment protected the publication of an illegally
- 16 - recorded communication of public concern — a private chat about a
dispute between a public union and a school district — obtained by
the publisher lawfully but by a source illegally, even though the
publisher knew or should have known about the source's law-
breaking. 532 U.S. 514, 518, 524-25, 527-35 (2001). "[P]rivacy
concerns g[a]ve way when balanced against the interest in
publishing matters of public importance," the Court said (as it
also left open whether the government can punish a publisher who
"acquired" the at-issue material "unlawfully"). Id. at 528, 534
(emphasizing that "[o]ne of the costs associated with
participation in public affairs is an attendant loss of privacy").
And consider now Jean v. Mass. State Police, where we
(applying Bartnicki) held that the First Amendment protected an
internet posting of public-concern material — a secretly-recorded
police arrest and search of a private home. 492 F.3d 24, 25 (1st
Cir. 2007). We ruled that way even though the poster had "reason
to know" that the source had "illegally recorded" the events, and
even though the poster had "arguably participated . . . in a
conspiracy to disclose" the video but had "played no part" in the
source's illegal recording. Id. at 25, 30-33.
What exactly is speech on a "matter of public concern"
remains a little fuzzy. Snyder, 562 U.S. at 452. But speech that
"can 'be fairly considered as relating to any matter of political,
social, or other concern to the community'" or that "is a subject
- 17 - of legitimate news interest" — i.e., "a subject of general interest
and of value and concern to the public" — definitely fits the bill.
See id. at 453 (first quoting Connick, 461 U.S. at 146, and then
quoting San Diego v. Roe, 543 U.S. 77, 83-84 (2004) (per curiam)).13
And speech that deals with "matters of 'purely private concern'"
definitely does not. See id. at 454 (emphasis added) (quoting Dun
& Bradstreet, 472 U.S. at 759).14
First Amendment freedoms are not without limits, however
(as we intimated in the explanatory parenthetical appended to our
Daily Mail cite). See id. at 456. In some situations, for example,
a person's "choice of where and when" to speak "is not beyond the
[g]overnment's regulatory reach" — provided the "time, place, or
manner restrictions" satisfy certain requirements (none relevant
13 Snyder is a good example. A religious group protested a soldier's private funeral with signs saying things like, "Thank God for IEDs," "Thank God for Dead Soldiers," and "Thank God for 9/11." 562 U.S. at 448. The First Amendment protected the group's speech because it touched on "matters of public import," including "the political and moral conduct of the United States and its citizens." Id. at 454. 14 Dun & Bradstreet is a helpful example. A credit agency sent a false report to five subscribers indicating that a contractor had filed for bankruptcy. 472 U.S. at 751-52. The First Amendment did not protect the agency's speech because it occurred "solely in the individual interest of the speaker and its specific business audience," was "made available to only five subscribers" who "could not disseminate it further," and had no relation to a "debate on public issues." Id. at 762 (emphasis added) (quoting Sullivan, 376 U.S. at 270).
- 18 - here). See id. (quoting Clark v. Cmty. for Creative Non-Violence,
468 U.S. 288, 293 (1984)).
(iii) Analysis15
Addressing step one of the qualified-immunity analysis,
we — after taking Berge's allegations as true (though knowing that
discovery or trial evidence may cast the case in a different light)
— have a hard time picturing a more textbook First Amendment
violation.
Berge very publicly recorded public officials performing
public duties in the publicly accessible part of a public building
— all to get information about the district's COVID-19 policies,
in a form he could then share, with the goal (to quote again from
the complaint) of "expos[ing] and comment[ing] on the
unreasonableness" of those "polic[ies]." See Citizens United v.
FEC, 558 U.S. 310, 339 (2010) (remarking that "[t]he right of
citizens to inquire, to hear, to speak, and to use information to
reach consensus is a precondition to enlightened self-government
and a necessary means to protect it"). And his speech (front and
center in the complaint) about COVID-19 protocols — the kind that
has sparked much political and social debate (and litigation too)
15 Because the constitutional violation and clearly established questions "overlap," Lyons v. City of Xenia, 417 F.3d 565, 581 (6th Cir. 2005) (Sutton, J., concurring), some redundancies in our analysis are inevitable.
- 19 - — strikes us as sufficiently "a subject of legitimate news
interest" to come within the sphere of public concern. See Najas
Realty, LLC v. Seekonk Water Dist., 821 F.3d 134, 143 (1st Cir.
2016) (indicating that speech about public health is a topic of
public concern).
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. See
Nieves v. Bartlett, 139 S. Ct. 1715, 1722 (2019) (reminding that
the First Amendment "'generally'" bans "'government officials from
subjecting an individual to retaliatory actions' for engaging in
protected speech" (quoting Hartman v. Moore, 547 U.S. 250, 256
(2006))); Sullivan, 376 U.S. at 269-70 (warning that government
officials cannot try to censor or suppress speech they dislike
just because they dislike it); see also Gericke v. Begin, 753 F.3d
1, 6 (1st Cir. 2014) (stressing that "[r]etaliation is always
reprehensible" and that "it is obviously improper for officers to
invoke [legal processes] for retaliatory purposes"). "[T]o
prevent the pursuit of legal action in this matter," the Eason-
signed letter "demand[ed]" that Berge "immediately remove the
[video] from [his] Facebook account and/or any other
communications." Which shows the complaint plausibly alleges that
the individual defendants knew the legal-action threat centered on
- 20 - Berge's right to publish. What is more — and as already explained
— the letter cited the state wiretap act as the only basis for the
removal demand (no one defends the threat on any other ground).
But — as also earlier noted — the wiretap act only bans "secret"
recordings (in which the persons recorded did not know they were
being recorded) and thus does not apply here. See Curtatone, 169
N.E.3d at 484. Which shows the complaint plausibly alleges that
the individual defendants knew such action was baseless.
And none of the individual defendants' comebacks compels
a different conclusion.
For starters, the individual defendants write that "if"
— as Berge seems to "insist[]" — a First Amendment right to record
"his visit" is a prerequisite to Berge's First Amendment "claim
for a right to publish," then the judge correctly dismissed the
retaliation count because Berge had no First Amendment right to
record (emphasis added). In other words — at least according to
the individual defendants — "[w]ithout a viable" First Amendment
"right to record," Berge's Facebook posting "enjoys no First
Amendment protection." But as Berge's appellate papers point out,
"this is a right to publish case" — without a distinct "claim over
[a] right to record." And as Berge's counsel indicated at oral
argument, we need not — given the case's posture — decide whether
Berge had a First Amendment right to record. So even if Berge had
no First Amendment right to record (and we express no opinion
- 21 - either way), that would not mean — given the complaint's facts —
that the individual defendants could then baselessly burden his
First Amendment right to publish.
On the right-to-publish issue, the individual defendants
contend that because Berge wanted tickets to his daughter's play,
his "visit" focused on his concerns rather than the public's —
meaning (the argument continues) his speech fell outside the scope
of the First Amendment. But some topics can both affect a party's
personal interests and concern public affairs, yet still — just
like Berge's COVID-19-related speech — land on the protected side
of the line. See Connick, 461 U.S. at 146-47 (underscoring that
speech of public concern relates to "political, social, or other
concern to the community," as opposed to "matters only of personal
interest" (emphasis added)). From this we hold that Berge's speech
involved a matter of public concern.
Shifting then from qualified immunity's step one
(constitutional rights violation) to step two (clearly established
law), we also think it follows naturally from the above cases that
Berge has plausibly pled a violation of a clearly established right
to publish on a topic of public interest when the violators acted
(as a reminder, but using a different case quote, a right is
"clearly established" when it is no longer among the "hazy" area
of constitutional issues that might be "reasonably
misapprehend[ed]." See Brosseau v. Haugen, 543 U.S. 194, 198
- 22 - (2004) (per curiam)). And by "acted" we mean (as the complaint
alleges) threatening Berge with an obviously groundless legal
action: Surely no sensible official reading these long-on-the-
books opinions could believe that that act — assuming it represents
an adverse action — was not a burden on Berge's First Amendment
right to publish on a matter of public concern. So given all this,
Berge's complaint plausibly alleges that the threat constituted
First Amendment retaliation in violation of his clearly
established right.
And the individual defendants' pushback does not go far.
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
- 23 - 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)).
In addition to repeating an already-rejected argument —
that the complaint's facts put Berge's speech on the "purely
personal" rather than "public concern" side of the constitutional
divide (our rejection reasons appear four paragraphs above) — the
individual defendants lean on Pitta v. Medeiros, 90 F.4th 11 (1st
Cir. 2024). But Pitta did not involve alleged retaliation against
the plaintiff's right to publish but instead supposed retaliation
against his right to record. So that case has no bearing on our
analysis.
All to say: We cannot now hold the individual defendants
qualifiedly immune on the retaliation count and so vacate the
judge's dismissal of count 1 against them.
(b) Declaratory Counts
We can make quicker work of the parties' fight over the
dismissal of the declaratory counts on mootness grounds. An
initial point of clarification, though. Berge's briefs claim that
the retraction letter — affirming "that the [Eason-signed] letter
. . . has been revoked and the [d]istrict will not take any criminal
- 24 - action against . . . Berge relating to the recording that took
place inside the school administration building" in March 2022 —
did not cover all defendants and did not preclude their pursuing
civil remedies. But responding to our questions at oral argument,
defendants' counsel represented that no defendant reserves any
right to take any action against him because of the March 2022
events. And we go on with that understanding.
Now and then real-world events "overtake" courtroom
events in a way that lets the "complaining party" get "outside of
litigation all the relief he might have won in it." FBI v. Fikre,
144 S. Ct. 771, 777 (2024). When that occurs, we judges "must
dismiss the case [or part of the case] as moot" — "must dismiss"
because a moot dispute is not a live dispute, which makes a federal
court's jurisdiction evaporate. Id. (emphasis added); see also
Already, LLC v. Nike, Inc., 568 U.S. 85, 90-91 (2013) (stressing
that a dispute must stay live during all stages of litigation, not
just when the complaint gets filed). Exactly so here, defendants
argue, because (in their mind) the retraction letter and oral-
argument representations voluntarily give Berge all the relief
sought in his declaratory counts — thus justifying the counts'
dismissal. Berge counters by invoking the "voluntary cessation"
doctrine, a "stringent" exception to mootness. See Friends of the
Earth, Inc. v. Laidlaw Env't Servs. (TOC), Inc., 528 U.S. 167, 189
(2000). Taking a de novo view of the matter, see Bos. Bit Labs,
- 25 - Inc. v. Baker, 11 F.4th 3, 8 (1st Cir. 2021), we this time side
with defendants.
A defendant's voluntarily ending an unconstitutional
practice may not moot a case if the plaintiff's alleged injury may
happen again. See, e.g., Friends of the Earth, 528 U.S. at 190
(proclaiming that a defendant invoking the voluntary-cessation
doctrine "bears the formidable burden of showing that it is
absolutely clear the allegedly wrongful behavior could not
reasonably be expected to recur"). But given defendants'
withdrawal letter and open-court representations, we think they
have made it absolutely clear that they will not repeat the
challenged behavior. That Berge intends to continue making and
publishing recordings of "his anticipated future communications
with [d]efendants" (a quote lifted from his declaratory counts)
does not change the result either. Given today's holding that his
complaint (considered in the right light) paints a picture of
unconstitutional retaliation, we see no reason to suspect that
defendants will ignore binding precedent and repeat the alleged
wrong. See generally Resurrection Sch. v. Hertel, 35 F.4th 524,
529 (6th Cir. 2022) (en banc) (finding the "prospect" that
officials would return to their old ways "exceedingly remote"
partly because of binding precedent published after the
controversy originally erupted). And his other ideas — like his
saying that defendants' "representation[s]" do not "bind them to
- 26 - not cooperate with any action" a prosecutor "might take" — are too
speculative to revive these otherwise-moot counts. See Calvary
Chapel of Bangor v. Mills, 52 F.4th 40, 50 (1st Cir. 2022).
Bottom line: We must hold the declaratory counts moot
and so affirm the judge's dismissal of those counts.
Motion's Denial
Even less need be said about the judge's decision
stamping "moot" Berge's motion for a temporary restraining order
and preliminary injunction. Berge himself notes that his motion
sought to "bar[]" defendants "from threatening or coercing him
into removing his video." But he got all that with the withdrawal
letter plus the oral-argument representations, which — based on
our de novo review, see Bos. Bit Labs, 11 F.4th at 8 — moot his
request, see Alvarez v. Smith, 558 U.S. 87, 92-94 (2009).
Net result: We must deem the motion for a temporary
restraining order and preliminary injunction moot and so affirm
the judge's denial of that motion.
WHAT THIS ALL MEANS
We vacate the judgment dismissing the retaliation count
against the individual defendants and remand with directions to
reinstate that count against them. But we affirm the dismissal of
the retaliation count against the school committee. We also affirm
the judgment dismissing the declaratory counts. And we affirm as
- 27 - well the denial of the motion for a temporary restraining order
and preliminary injunction.16
Vacated in part, affirmed in part, and remanded for
further proceedings. Berge shall recover his costs on appeal.
16 We also thank the amici and their counsel for their helpful briefs.
- 28 -