Michael Zieper, Mark Wieger, Becamation v. Joseph Metzinger, Lisa Korologos, Docket No. 05-5250-Cv

474 F.3d 60, 35 Media L. Rep. (BNA) 1331, 2007 U.S. App. LEXIS 1144
Court of Appeals for the Second Circuit·Decided January 19, 2007·No. 60·Published·Cited by 36 cases

Opinion

KATZMANN, Circuit Judge:

This case arises out of the efforts of the Federal Bureau of Investigation and the United States Attorney’s Office for the Southern District of New York to remove from the internet a video that they may have believed posed a danger to the public safety. We are called upon to determine, first, whether the defendants are entitled to summary judgment on their contention that their actions did not violate the First Amendment rights of the video’s filmmaker and distributor and, second, whether the plaintiffs-appellants’ claims are nonetheless barred by the doctrine of qualified immunity. We hold that although the defendants are not entitled to summary judgment on their First Amendment argument, they are entitled to qualified immunity. The decision of the district court is affirmed.

*63 I.

The pertinent facts, undisputed for the purposes of this motion, are as follows.

In October 1999, plaintiff-appellant Michael Zieper placed on the internet a short film he had written, directed, and produced called “Military Takeover of New York City.” In the film, viewers see various shots of Times Square as an unseen narrator, who purports to be a military officer, briefs other members of the military about plans for a military takeover of Times Square on New Year’s Eve 1999. The website included this text as an introduction to the film:

Is there going to be a Military Takeover of New York City on New Years Eve 1999? I don’t know too much about this tape you are about to see. I got it from my cousin Steve who’s in the army. He said that copies of this tape are floating around the base, and nobody knows who made it. If it’s fake, then there’s nothing to worry about. If it’s real, thén we’re in really big trouble.

Zieper rented space for the film from BE Carnation, a web hosting service run by plaintiff-appellant Mark Wieger. Wieger rented his internet space from a company called Online Marketing, LLC (“OLM”), which in turn rented its space from GTE Internetworking (“GTE”). Zieper also publicized his film by posting information about it on a number of internet sites. On none of these sites did Zieper indicate whether the work was fictional.

On November 8, 1999, the New York Police Department (“NYPD”) faxed information about the film to the FBI’s Joint Terrorism Task Force. Patrick Fitzgerald, then-Co-Chief of the Organized Crime and Terrorism Unit of the U.S. Attorney’s Office for the Southern District of New York, watched the film with Pasquale D’Amuro, then-FBI Assistant Special Agent in Charge of the Counterterrorism Branch of the New York Office, and concluded that the video was a work of fiction. He also determined that they could ask that it be removed from the internet, although they could not order its removal. Fitzgerald explained this to D’Amuro, who told defendant Joseph Metzinger, one of the FBI agents assigned to work on the case, that he should try to have it removed, but that all that he could do was make a request.

On November 9, 1999, the U.S. Attorney’s Office served a grand jury subpoena on GTE to obtain information about Zieper’s website. From GTE’s response, the office learned that GTE rented the space to OLM, which in turn rented it to Wieger. The next day, Metzinger went to Zieper’s home in West Caldwell, New Jersey with two NYPD officers and an officer from the local West Caldwell force. Because Zieper was not at home when they arrived, they left and returned later in the evening. When they returned at approximately 7 p.m., Zieper was still not at home, so they called his home telephone number and reached an answering machine, which provided his pager number. The West Caldwell police officer paged Zieper, and when Zieper returned the call, the police officer told him that he was outside his home with FBI agents who wanted to speak with him and wanted to know when he would be home. Zieper told the officer he would not be returning home that night, and the call ended. No mention was made of the video.

Metzinger then paged Zieper, and when Zieper returned this second page, Met-zinger told him that he was an FBI agent and that he and the other officers were at his home because of the website and film. The two spoke for approximately five minutes, during which time Metzinger told Zieper he was trying to find out about the *64 film and asked him where he had gotten it. He also told him that it might upset people who were coming to New York and that it would have a negative effect on people’s plans and local businesses. Finally, he told him that people were asking the FBI about .the video, and he asked him if there was any way the FBI could prevent people from seeing the tape. Zieper was not particularly forthcoming during the phone call, but told Metzinger he would call him back the next day. Zieper also said he did not think it was possible to stop people from seeing the video because it was going to be aired on a local news station that evening. When Metzinger asked if Zieper could call the station to request that they not air the story, Zieper said that he did not think he could stop it, but perhaps Metzinger could.

Zieper did not call Metzinger back the next day, so Metzinger left a voice mail message for Zieper, who had his attorneys return the phone call. The attorneys told Metiznger that the film was fictional and expressed their view that Metzinger was violating the First Amendment in pursuing Zieper. Although the lawyers offered to meet with Metzinger, Metzinger declined to meet with them or to discuss the matter further. When one of the lawyers expressed the hope that “it’s over,” Metzinger reported that it was not over. Metzinger told the lawyers that more FBI agents were on their way to Zieper’s home and that he could not stop them. Notwithstanding that comment, Metzinger did, in fact, stop the officers once he got off the phone with Zieper’s attorneys.

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Michael Zieper, Mark Wieger, Becamation v. Joseph Metzinger, Lisa Korologos, Docket No. 05-5250-Cv, 474 F.3d 60, 35 Media L. Rep. (BNA) 1331, 2007 U.S. App. LEXIS 1144 (2d Cir. 2007).

474 F.3d 60 (Michael Zieper, Mark Wieger, Becamation v. Joseph Metzinger, Lisa Korologos, Docket No. 05-5250-Cv) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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