United States Court of Appeals For the First Circuit
No. 23-1513
SCOTT D. PITTA,
Plaintiff, Appellant,
v.
DINA MEDEIROS, individually and in her official capacity as Administrator of Special Education for the Bridgewater Raynham Regional School District; BRIDGEWATER RAYNHAM REGIONAL SCHOOL DISTRICT,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
[Hon. F. Dennis Saylor, IV, U.S. District Judge]
Before
Gelpí, Selya, and Lynch, Circuit Judges.
Scott D. Pitta, pro se, for appellant. Peter L. Mello, with whom Murphy, Hesse, Toomey & Lehane, LLP, was on brief, for appellees.
January 4, 2024 LYNCH, Circuit Judge. Scott D. Pitta, the attorney
father of a public school student, appeals from the decision of
the Massachusetts U.S. District Court granting the motion to
dismiss his First Amendment claim against Bridgewater-Raynham
Regional School District ("the District") and Dina Medeiros, the
District's Administrator for Special Education. Pitta v.
Medeiros, No. 22-11641, 2023 WL 3572391 (D. Mass. May 19, 2023).
After the District denied his request to video record a
private meeting with school district employees to discuss the
Individualized Educational Program ("IEP") of his child, Pitta
brought suit under 42 U.S.C. § 1983, alleging that he had a
constitutional First Amendment right, which the appellees had
denied, to video record what was said by each individual at his
child's IEP Meeting. The district court held that Pitta, on the
facts alleged, did not possess such a First Amendment right, id.
at *8, and that is the only issue on appeal. To be clear, Pitta
does not allege that he had a right to record an IEP Team Meeting
under any federal or state statute or regulation. We affirm the
district court's dismissal of Pitta's First Amendment claim.
I.
We first detail the allegations in Pitta's complaint and
events in his further filings, on which he relies. Pitta is a
resident of Bridgewater, Massachusetts. His child attends public
school in the District and, at the time of the events pled,
- 2 - received IEP services. Appellees are the District, a Massachusetts
school district organized under Massachusetts General Laws ch. 71,
§ 14B, and Medeiros in her official capacity as the District's
Administrator of Special Education. Pitta originally sued
Medeiros in her individual capacity as well, but this claim was
dropped on appeal.
On February 15, 2022, and March 8, 2022, during the
COVID-19 pandemic, Pitta and pertinent District employees engaged
in two meetings ("IEP Team Meetings") virtually to "discuss and
develop a new IEP for [Pitta's] child." During these meetings,
although the appellees had previously "argu[ed] to remove
[Pitta's] child from IEP based special education services,"
"several school district employees" admitted "that the [District
and Medeiros] had no data upon which to base their opinion" that
his child should be removed from these services, and "that teachers
who performed evaluations on the child that resulted in findings
contrary to the [appellees'] position were later asked by the
[appellees] to 'double check' their evaluation, but teachers whose
evaluation results supported the [appellees'] position were not
asked to do the same." The complaint alleges that "[d]espite
lengthy discussions" of these statements, these statements "were
not included in the [appellees'] official meeting minutes that
were emailed to [him] on March 10[], 2022." When Pitta alerted
appellees to these "omissions and inaccuracies," he "objected to
- 3 - the [appellees'] minutes as an official record of the meetings and
requested that the minutes be amended to include the omitted
portions," but appellees "refused to amend the meeting minutes."
Months later, on September 20, 2022, Pitta attended
another IEP Team Meeting, conducted virtually through "Google
Meet," to discuss his child's IEP. Pitta requested that the
appellees video record the meeting using the Google Meet record
function. 1 He did so, he alleges, because of appellees' previous
"failure to produce accurate minutes of prior meetings and refusal
to correct those errors despite obligations to maintain accurate
records under 603 CMR 23.03." Appellees refused his request to
make such a video recording, stating that such a recording would
be "invasive" and was not permitted by District policy. Appellees
did offer to audio record the meeting instead. Pitta then told
Medeiros, the IEP Team Meeting chair, that since the District's
policy prohibited them from video recording the meeting, he would
make his own recording. Once the meeting began, the appellees
announced that they were audio recording the meeting, and Pitta
stated that he was video recording it. At that point, Medeiros
stated that if Pitta did not stop his video recording, she would
1Both Pitta's complaint and the appellees' brief state that Pitta "requested that the Defendants[] video record the meeting using the Google Meet record function." As the district court noted, Pitta did not specify which District employees, other than Medeiros, attended the IEP Team Meeting. Pitta, 2023 WL 3572391, at *7.
- 4 - end the meeting. When Pitta refused to stop the video recording,
Medeiros terminated this meeting. Pitta filed this suit on
September 28, 2022, within days of the failed meeting, seeking
declaratory and injunctive relief.
On October 3, 2022, after Pitta had filed this suit,
Medeiros emailed Pitta that the District had "figured out a way to
accommodate [his] request to know who is speaking while the meeting
is being audio recorded" and was attempting to find a mutually
agreeable time "for the educational Team to reconvene from the
attempted [IEP] Team [M]eeting scheduled on 9/20/22."2 She
proposed that "[t]eam members will all be audio recorded and
participate with the camera off. When speaking, their identity
box will be indic[a]ted as the person speaking by lighting
around/within the box." She wrote that this would allow Pitta to
"be able to tell who is speaking" while "looking at the screen."
Pitta agreed to a virtual IEP Team Meeting under these conditions
to take place on October 21, 2022. 3
2 On a motion to dismiss, we may consider documents which are of undisputed authenticity, official public records, central to the plaintiff's claim, or sufficiently referred to in the complaint. Watterson v. Page, 987 F.2d 1, 3 (1st Cir. 1993). We will consider the e-mails attached to appellees' memorandum to the district court as documents of undisputed authenticity.
3 The record does not reflect whether this meeting took place. At oral argument, Pitta stated that after the district court granted the appellees' motion to dismiss in this case, the District rescinded its offer to allow this kind of recording and
- 5 - After filing this suit, Pitta sent a public records
request on July 10, 2023, seeking from the District "[a]ll special
education policies, procedures, etc[.] regarding the IEP process
in effect from January 1, 2022[,] to the date of th[at] request";
"[a]ll emails to or from Paul Tsovolos or Dina Medeiros regarding
the same information"; and "[a]ll changes or proposed changes to
policies, procedures, etc[.] requested." On July 24, 2023, the
District provided Pitta with a copy of the Bridgewater-Raynham
Regional School District Special Education Policy and Procedure
Manual ("Manual").4
The Manual explains in detail the District's
requirements and policies regarding IEPs, the composition of IEP
Teams, and the conduct of IEP Team Meetings. It lists the specific
individuals who comprise an IEP Team as: "the student's parent(s);
at least one regular education teacher familiar with the student;
at least one special education teacher familiar with the student;
a representative of the district who has the authority to commit
has since restricted both audio and video recording of IEP Team Meetings.
4 Pitta filed a Supplemental Appendix with his reply brief containing the Manual, as well as a June 4, 2003, letter written by Stephanie S. Lee, then-Director of the Office of Special Education Programs at the Department of Education ("DOE"). We take judicial notice of the official documents contained in the Supplemental Appendix, the appellees not having contested their authenticity.
- 6 - resources5; an individual who can interpret evaluation results;
other individual(s) who have knowledge or expertise regarding the
student; [and] if appropriate, the child."
The Manual states that "[t]he [IEP] Team is charged with
managing three important activities: Eligibility Determination/
Initial and Reevaluation[;] Development of the IEP[; and]
Placement Decision." (Emphasis omitted.) "After finding a student
eligible for special education services, the Team develops the
IEP." "The IEP must be tailored to the individual student['s]
needs as determined through the evaluation process." It explains
that "[d]uring an IEP Meeting, Team members share information and
discuss the needs of the student in order to gain a comprehensive
understanding of the student." IEP development is a "student
driven, individualized process," and "[a] well-managed Team
meeting" solicits and considers highly personalized information
about the student for whom the IEP is being developed, including
"parent/student input," "the student's future dreams and goals,"
"how the student's disability affects the student's learning," and
"how the student performs today," as well as "the areas that are
affected by the disability" and the "supports and services the
student needs for success." Team members must also review "the
5 The Manual instructs that "[t]he Director of Student Services, Administrator of Special Education, Special Education Coordinator, Principals and Chairpersons/Department Head have the authority to commit District resources."
- 7 - student's strengths, interests, personal attributes, and personal
accomplishments as well as key evaluation results," among other
behaviors and personal characteristics of the student.
The Manual states that "[Massachusetts] regulations and
[the District] require[] attendance at the Team Meeting of the
following staff members: (1) Regular Education Teacher[;] (2)
Special Education Teacher[;] (3) A representative of the district
who is able to commit the resources of the district[; and] (4) An
individual who can interpret the instructional implications of
[the] evaluation results, who may be a member described above."
In addition, "[t]he Administrator or Coordinator of Special
Education is available to attend any meeting where the Team feels
it will be discussing resources beyond those which are readily
available in their school building." The Manual permits
"[a]lternatives to 'physical meetings'" for IEP Team Meetings,
"including video conferencing, telephone conferencing, or virtual
meetings."
The Manual does not address the topic of video recording
these meetings. It does specify, however, how IEP Team Meetings
should be documented. The Manual describes the use of an "N1
letter" as "a tool used to formally document the proposed action
and justification for that action that a school district will take
following a Team meeting." "The N1 letter is the district account
and perspective on the proceedings and should outline all perceived
- 8 - viewpoints and responses resulting from the Team discussion,"
including "a clear student-centered recommendation that allows for
the student to receive a Free and Appropriate Public Education,"
"documentation of the consideration of any rejected factors by the
Team," "all district based information (staff input, observation,
evaluation)" and "all information obtained from parents or non-
district members of the Team (parent observation, outside
evaluations, outside service provider input, discharge summary)."
The Manual also requires that the IEP Team Members "[u]se the Team
Meeting Notes Form to document pertinent information summarizing
the [IEP Team] meeting and action plan." It states that "[a]ny
formal meeting among Team members, including parents, should
result in either: a completed IEP or the Team Meeting Notes/Summary
form in lieu of the completed IEP (if changes are made to the
IEP)."
II.
On October 20, 2022, Medeiros and the District moved to
dismiss the complaint under Federal Rule of Civil Procedure
12(b)(6) for failure to state a claim upon which relief can be
granted. After briefing and argument, the district court issued
its Memorandum and Order granting the defendants' motion to dismiss
on May 19, 2023. See Pitta, 2023 WL 3572391, at *8. It held that
the complaint failed to state a claim under the First Amendment
because First Amendment protections for "filming government
- 9 - officials engaged in their duties in a public place," as recognized
by the First Circuit in Glik v. Cunniffe, 655 F.3d 78 (1st Cir.
2011), did not extend to video recording an IEP Team Meeting. Id.
at *6 (quoting Glik, 655 F.3d at 82). It reasoned that the meeting
did not occur in a "public space," its attendees were not included
under the definition of "public officials" as the term was used in
Glik and a related case, Iacobucci v. Boulter, 193 F.3d 14 (1st
Cir. 1999), and it was unclear whether a right to record public
officials existed without a corresponding intent to disseminate
the recording, which it found Pitta did not allege. See Pitta,
2023 WL 3572391, at *7-8. 6
6 The district court's other rulings are not at issue in this appeal. In addition to their motion to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(6), appellees also moved to dismiss it under Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction due to mootness and failure to exhaust administrative remedies under the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. §§ 1400-1482. Pitta, 2023 WL 3572391, at *3-6. In addition, Medeiros moved to dismiss the complaint against her in her individual capacity for insufficient service of process under Fed. R. Civ. P. 12(b)(4)(e). Id. at *8. The district court declined to dismiss the complaint for lack of subject matter jurisdiction under Rule 12(b)(1), holding first that the complaint presented a live case or controversy and second that Pitta's claim was not subject to the exhaustion requirement under the IDEA. Id. at *3-6. The court also dismissed Pitta's Fourteenth Amendment claim for failure to state a claim under Rule 12(b)(6) because the complaint did not provide detail beyond mere allegations that his due process rights had been infringed or that he had been denied equal protection of the laws. Id. at *8. Finally, the court dismissed the individual-capacity claim against Medeiros under Rule 12(b)(4)(e) for failure to effect proper service. Id.
- 10 - Pitta timely appealed.
III.
We review de novo a district court's grant of a motion
to dismiss for failure to state a claim under Rule 12(b)(6). Lyman
v. Baker, 954 F.3d 351, 359 (1st Cir. 2020). "[I]n First Amendment
cases, appellate courts have 'an obligation to make an independent
examination of the whole record' in order to make sure that 'the
judgment does not constitute a forbidden intrusion on the field of
free expression.'" Cheng v. Neumann, 51 F.4th 438, 443 (1st Cir.
2022) (quoting Bose Corp. v. Consumers Union of U.S., Inc., 466
U.S. 485, 499 (1984)).
We accept the complaint's well-pleaded factual
allegations as true and draw all reasonable inferences in favor of
the non-movant. Id. (citing McKee v. Cosby, 874 F.3d 54, 59 (1st
Cir. 2017)). "We do not credit legal labels or conclusory
statements, but rather focus on the complaint's non-conclusory,
non-speculative factual allegations and ask whether they plausibly
narrate a claim for relief." Id.
To survive a motion to dismiss, the complaint must "state
a claim to relief that is plausible on its face," Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 570 (2007), that is, its "[f]actual
allegations must be enough to raise a right to relief above the
speculative level, . . . on the assumption that all the allegations
in the complaint are true (even if doubtful in fact)," id. at 555.
- 11 - While the plausibility standard is not a "'probability
requirement,' . . . it does require 'more than a sheer possibility
that a defendant has acted unlawfully.'" Air Sunshine, Inc. v.
Carl, 663 F.3d 27, 33 (1st Cir. 2011) (quoting Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009)). "Determining whether a complaint states
a plausible claim for relief" is "a context-specific task that
requires the reviewing court to draw on its judicial experience
and common sense." Iqbal, 556 U.S. at 679. If the complaint fails
to include "factual allegations, either direct or inferential,
respecting each material element necessary to sustain recovery
under some actionable legal theory," it should be dismissed.
Gagliardi v. Sullivan, 513 F.3d 301, 305 (1st Cir. 2008) (quoting
Centro Médico del Turabo, Inc. v. Feliciano de Melecio, 406 F.3d
1, 6 (1st Cir. 2005)).
IV.
"The First Amendment, which applies to the States
through the Fourteenth," Mills v. Alabama, 384 U.S. 214, 218
(1966), provides that "Congress shall make no law . . . abridging
the freedom of speech," U.S. Const. amend. I. In order to
determine whether Pitta's First Amendment rights were violated, we
first address whether video recording one's child's IEP Team
Meeting is protected by this amendment. See Cornelius v. NAACP
Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 797 (1985); see also
- 12 - Project Veritas Action Fund v. Rollins, 982 F.3d 813, 830-31 (1st
Cir. 2020). We conclude it is not.
In Glik v. Cunniffe, this court held that an onlooker
possessed a constitutionally protected right under the First
Amendment to video tape police officers as they performed an arrest
in the Boston Common. 655 F.3d at 82-84. As the appellant in
that case was walking through the Common, he caught sight of three
police officers arresting a young man. Id. at 79. "Concerned
that the officers were employing excessive force to effect the
arrest, Glik stopped roughly ten feet away and began recording
video footage of the arrest on his cell phone." Id. at 79-80.
This court found that First Amendment protections "encompass[] a
range of conduct related to the gathering and dissemination of
information," and that "[t]he filming of government officials
engaged in their duties in a public place, including police
officers performing their responsibilities, fits comfortably
within" this range.7 Id. at 82.
7 In making its determination, the Glik court commented that "we have previously recognized that the videotaping of public officials is an exercise of First Amendment liberties," citing Iacobucci, 193 F.3d. But Iacobucci did not raise a First Amendment claim. Rather, the case involved a 42 U.S.C. § 1983 claim for false arrest brought by a local journalist who was arrested while attempting to film commissioners of the Town of Pembroke's Historic District Commission in the Pembroke Town Hall after a public meeting of the Commission. Iacobucci, 193 F.3d at 17-18. Iacobucci attended the Commission meeting to videotape it for "a weekly news program that he produced and broadcast via a cable television outlet." Id. at 17. He refused to stop recording
- 13 - This court also recognized on the facts therein a First
Amendment right to video and audio record police officers in
Gericke v. Begin, 753 F.3d 1 (1st Cir. 2014), and in Project
Veritas, 982 F.3d. Gericke held that an individual has a right to
record police officers "carrying out their duties in public" while
conducting a traffic stop on the side of the road. 753 F.3d at 3-
4, 7 (quoting Glik, 655 F.3d at 82). Gericke was driving on the
highway in Weare, New Hampshire, at approximately 11:30 pm when a
police officer stopped her friend's car, which she had been
following. Id. at 3. Gericke pointed a video camera at the police
officer and announced that she was going to audio-video record the
officer while he interacted with her friend, who had exited his
vehicle. Id. When the police officer ordered Gericke to return
the meeting despite repeated requests by the commissioners and by police officers eventually called to the scene. Id. at 17-18. After the meeting ended, Iacobucci noticed that the commissioners were speaking with a man in the Town Hall corridor and began filming their conversation "on the assumption that he was witnessing a de facto resumption of the adjourned meeting." Id. at 18. Although the commissioners again asked him to stop filming, Iacobucci persisted. Id. Eventually a police sergeant stepped in front of his camera lens and demanded he cease and desist, but Iacobucci continued video recording, even after he was given the ultimatum of "sit down or be arrested," until the sergeant took his camera and placed him under arrest. Id. The criminal charges were eventually dismissed, but Iacobucci filed a pro se civil action which included the false arrest claim against the sergeant. Id. The opinion stated in dicta that because Iacobucci's "activities were peaceful, not performed in derogation of any law, and done in the exercise of his First Amendment rights, [the defendant police sergeant] lacked the authority to stop them." Id. at 25 (emphasis added).
- 14 - to her car, she immediately complied, though she continued to point
her camera at the officer despite knowing it was not recording.8
Id. This court held that the "constitutionally protected right to
film police . . . discussed in Glik" applied to Gericke's case as
well, because "[i]n both instances, the subject of filming is
'police carrying out their duties in public,'" id. at 7 (quoting
Glik, 655 F.3d at 82), though the court acknowledged that the
circumstances of filming a traffic stop were "substantially
different" than filming an arrest in a public park, id. at 5. In
doing so, this court emphasized that this holding did not mean "an
individual's exercise of the right to film a traffic stop cannot
be limited." Id. at 7. "The circumstances of some traffic stops
. . . might justify a safety measure -- for example, a command
that bystanders disperse -- that would incidentally impact an
8 Gericke eventually put away the camera in her car's central console on her own accord. Id. When Gericke refused to tell another police officer who had arrived on the scene where she had put the camera and to produce her license and registration upon his request, the officer arrested her for disobeying a police order. Id. at 3-4. The Weare police then filed criminal complaints against Gericke, including unlawful interception of oral communications. See id. at 4; N.H. Rev. Stat. Ann. § 570– A:2. Although town and county prosecutors declined to proceed on the charges against her, Gericke brought an action under 42 U.S.C. § 1983 against the defendant police officers, the Weare Police Department, and the Town of Weare, alleging that "the officers violated her First Amendment rights when they charged her with illegal wiretapping in retaliation for her videotaping of the traffic stop." Gericke, 753 F.3d at 4.
- 15 - individual's exercise of the First Amendment right to film." Id.
at 8.
In Project Veritas, this court held that this First
Amendment right to record "police officers discharging their
official duties in public space" included the right to make
"secret, nonconsensual audio recording[s]." 982 F.3d at 817.
Project Veritas involved challenges made by two sets of plaintiffs
-- two Boston civil rights activists, K. Eric Martin and René Pérez
and a national undercover investigative journalism organization,
Project Veritas Action Fund -- to Massachusetts General Laws ch.
272, § 99 ("Section 99"), which criminalized secret audio
recordings made without prior permission by the recorded party.
Id. Martin and Pérez "allege[d] that Section 99 violate[d] the
First Amendment insofar as it criminalizes the secret,
nonconsensual audio recording of police officers discharging their
official duties in public spaces." Id. Project Veritas, in
contrast, challenged Section 99 "insofar as it bans the secret,
nonconsensual audio recording of any government official
discharging official duties in public spaces, as well as insofar
as it bans such recording of any person who does not have a
reasonable expectation of privacy in what is recorded." Id.
(emphasis added in part). Project Veritas also argued that Section
99 should be "struck down in its entirety" due to overbreadth.
Id.
- 16 - This court upheld judgment for Martin and Pérez, finding
that Section 99's prohibition on "secret, nonconsensual audio
recording of police officers discharging their official duties in
public spaces" violated the First Amendment. Id. More
significantly for present purposes, the court vacated on ripeness
grounds the district court's grant of summary judgment to Project
Veritas's challenge that Section 99 "violate[d] the First
Amendment insofar as that statute bars the secret, nonconsensual
audio recording of government officials discharging their duties
in public." Id. at 817-18. Project Veritas sought to challenge
Section 99's prohibition on recording "government officials" in
general, which it defined as "officials and civil servants,"
including persons "employed in a department responsible for
conducting the affairs of a national or local government," also
known as "public employee[s]." Id. at 843, 843 n.5 (citing
Official, Black's Law Dictionary (10th ed. 2014); Civil Servant,
Black's Law Dictionary (10th ed. 2014)). But its plans to record
government officials and police officers were too "narrow[]" to
raise the much broader issue of whether Section 99's prohibition
on recording all "government officials discharging their duties in
public spaces" violated the First Amendment. Id. at 843.
Importantly, this was because "government officials," as defined
by Project Veritas, "cover[ed] everyone from an elected official
to a public school teacher to a city park maintenance worker."
- 17 - Id. (emphasis added). This court rejected that definition. Id.
Indeed, the court held that the "First Amendment analysis might be
appreciably affected by the type of government official who would
be recorded;" for example, "a restriction on the recording of a
mayor's speech in a public park" would differ from "a restriction
on the recording of a grammar school teacher interacting with her
students in that same locale." Id. (emphasis added).
Pitta's First Amendment claim rests, as the district
court recognized, on a misreading of this Circuit's precedents in
Glik, Iacobucci, Gericke, and Project Veritas. These cases do not
support his argument that a First Amendment right to record exists
whenever "public officials" are operating in "public spaces."
Among other things, his argument ignores limitations imposed both
explicitly and implicitly by these cases. A student's IEP Team
Meeting, whether virtual or in person, is ordinarily not conducted
in a "public space." Further, this meeting could not be public
because only members of a student's IEP Team may attend an IEP
Team Meeting, and because IEP Team Meetings involve the discussion
of sensitive information about the student. Nor are school
district employees attending these meetings akin to the "public
officials" in the cases cited by Pitta. In most of these cases,
those "public officials" were law enforcement officers performing
their duties in obviously public places. We hold, as did the
- 18 - district court, that Pitta possesses no First Amendment right to
video record IEP Team Meetings and do so for a variety of reasons.
To start, an IEP Team Meeting does not ordinarily occur
in a space open to the public. Pitta argues that whether the
recording occurred in a public space or non-public space "[i]s
[i]rrelevant [f]or [t]he [p]urpose [o]f [a] [m]otion [t]o
[d]ismiss" because "[t]he specific forum merely identifies the
level of scrutiny applied to the government officials[']
restriction of First Amendment activity." He argues from this
that "[a] finding that the specific forum is a non-public forum"
does not foreclose a finding that he had a First Amendment right
to video record.
This Circuit's cases have found a First Amendment right
to record government officials performing their duties only when
those duties have been performed in public spaces. See Glik, 655
F.3d at 84 (protecting under the First Amendment a recording made
"in the Boston Common, the oldest city park in the United States
and the apotheosis of a public forum"); Gericke, 753 F.3d at 7;
Project Veritas, 982 F.3d. at 844. In Project Veritas, we noted
that "[o]ur cases have fleshed out the contours of [the public
space] category":
traditional public fora, such as public parks like the Boston Common (which was the site of the recording in Glik, 655 F.3d at 84); the sites of traffic stops, including those that occur on the sides of roads, see Gericke, 753
- 19 - F.3d at 8 . . .; and other "inescapably" public spaces, id. at 7, such as the location of the recording that occurred in Iacobucci v. Boulter, 193 F.3d 14 (1st Cir. 1999), which concerned a journalist's arrest for openly recording members "of the Pembroke Historic District Commission" that were having a conversation in "the hallway" of the town hall immediately following an open public meeting, id. at 17-18.
Id. at 827. The setting of an IEP Team Meeting could hardly be
more different from these public spaces identified in Project
Veritas.
The IEP Team Meeting occurred in a password-protected
virtual meeting room under the control of a public school official.
Even if the IEP Team Meeting were not virtual, but in person, the
general public is not free to walk into a school and enter a
meeting of educators. Even parents, apart from the general public,
have no constitutional right to attend a meeting to which they
were not invited. See Carey v. Brown, 447 U.S. 455, 470-71 (1980)
(finding that the Constitution does not leave state officials
"powerless to pass laws to protect the public from . . . conduct
that disturbs the tranquility of spots selected by the people . . .
[for] buildings that require peace and quiet to carry out their
functions, such as . . . schools"); see also Hannemann v. S. Door
Cnty. Sch. Dist., 673 F.3d 746, 755 (7th Cir. 2012) (holding
"members of the public do not have a constitutional right to access
school property"); Lovern v. Edwards, 190 F.3d 648, 655 (4th Cir.
- 20 - 1999) ("School officials have the authority to control students
and school personnel on school property, and also have the
authority and responsibility for assuring that parents and third
parties conduct themselves appropriately while on school
property."); Silano v. Sag Harbor Union Free Sch. Dist. Bd. of
Educ., 42 F.3d 719, 724 (2d Cir. 1994) (finding appellant, a Board
of Education member, "did not have an unrestricted right to enter
the school classrooms or hallways during school hours"); Worthley
v. Sch. Comm. of Gloucester, No. 22-12060, 2023 WL 2918981, at *5
(D. Mass. Apr. 12, 2023) (holding plaintiff, "as a member of the
public, does not have a constitutional interest to access the
school during school hours").9
9 We quickly dispatch Pitta's argument that this court should utilize what he calls a "Lawfully Present" standard to define what is a "public space." He argues that if a "member of the public was lawfully present while recording government officials," that space should be deemed public. None of the cases to which Pitta cites support his argument for a "Lawfully Present" standard. There is good reason for this. To give an example, a member of the public called for jury duty, and thus lawfully present in a jury room, does not have a First Amendment right to video record their fellow jurors during deliberations, nor the proceedings of the courtroom from the jury box. See 18 U.S.C. § 1508(a) (banning "record[ing], or attempt[ing] to record, the proceedings of any grand or petit jury in any court of the United States while such jury is deliberating or voting"); Fed. R. Crim. P. 53 ("Except as otherwise provided by a statute or these rules, the court must not permit the taking of photographs in the courtroom during judicial proceedings or the broadcasting of judicial proceedings from the courtroom."); Liviz v. Sup. Ct. of U.S., No. 18-12532, 2018 WL 6592093, at *2 (D. Mass. Dec. 14, 2018), aff'd, No. 18-2252, 2019 WL 2537955 (1st Cir. Mar. 19, 2019) ("To the extent [the plaintiff] contends that there is a First
- 21 - The public did not, and could not by law or District
policy, have access to an IEP Team Meeting. Attendance is limited
to members of a student's IEP Team. See 20 U.S.C.
§§ 1414(d)(1)(B), 1414(d)(1)(C) (defining the members of the IEP
team and policies for IEP Team attendance); 34 C.F.R. 300.321
(outlining policies for IEP Team composition and attendance).
In addition, the IEP Team Meetings not only take place
in non-public spaces and are closed to the public, but by their
nature involve discussions of personal, highly sensitive
information about a student. According to the Manual, these topics
include "the student's future dreams and goals," "how the student's
disability affects the student's learning," and "how the student
performs today," as well as "the areas that are affected by the
disability" and the "supports and services the student needs for
success," so that all attendees at the meetings can "gain a
comprehensive understanding of the student" and discuss or develop
an IEP "tailored to the individual student." See also 20 U.S.C.
§ 1414; 603 C.M.R. 28.05 (outlining the requirements for the IEP
development process under Massachusetts law).
Next, unlike the public officials in Glik, Gericke, and
Project Veritas, the IEP Team Members were not performing their
duties in public, but rather at a virtual meeting with no public
Amendment right of camera access to the Supreme Court and other federal courts, such a right has not been recognized.").
- 22 - access. The District has effectively argued that video recording
IEP Team Members would hinder their performance of their duties,
as it carries a high risk of suppressing the sensitive,
confidential, and honest conversations necessary when discussing
or developing a child's IEP. Public school teachers and
administrators carrying out their IEP obligations also do not wield
the same "power of suppression" as police officers, see Glik, 655
F.3d at 82 (quoting First Nat'l Bank of Bos. v. Bellotti, 435 U.S.
765, 777 n.11 (1978)), nor have they been "granted substantial
discretion that may be misused to deprive individuals of their
liberty," as law enforcement officials have, id. Unlike police
officers, IEP Team Members are not "expected to endure significant
burdens caused by citizens' exercise of their First Amendment
rights." Id. at 84.
We thus also reject Pitta's overbroad argument that the
references to "public officials" or "government officials" in
Glik, Project Veritas, and Gericke, where these terms were used to
refer to police officers, extends to anyone employed by a
government. This court has never held that the test is whether an
individual sought to be video recorded in the course of his or her
job is a government official. Pitta's argument ignores established
limitations in First Circuit law, which permit recording of
government officials performing their duties only in indisputably
public places in full view of the public, and even then, only when
- 23 - the act of filming would not hinder officials in the performance
of their public duties and would serve public interests.
For example, in Glik, the court considered what it called
the "fairly narrow" First Amendment issue of whether "there [is]
a constitutionally protected right to videotape police carrying
out their duties in public." Id. at 82 (emphasis added). "The
same restraint demanded of law enforcement officers in the face of
'provocative and challenging' speech must be expected when they
are merely the subject of videotaping that memorializes, without
impairing, their work in public spaces." Id. (emphasis added)
(quoting City of Houston v. Hill, 482 U.S. 451, 461 (1987)).
In Gericke, the "government officials" at issue were
also police officers "carrying out their duties in public" while
conducting a traffic stop on the side of the road. 753 F.3d at 3-
4, 7 (quoting Glik, 655 F.3d at 82). This court held that the
officer, however, could prevent the recording if he "c[ould]
reasonably conclude that the filming itself is interfering, or is
about to interfere, with his duties." Id. at 8.
Project Veritas also does not support Pitta's argument.
This court held that individuals have a First Amendment right to
make "secret, nonconsensual audio recording[s]" only of "police
officers discharging their official duties in public spaces." See
982 F.3d at 817. It also reaffirmed that "[t]he government is
under no obligation to permit a type of newsgathering that would
- 24 - interfere with police officers' ability to do their jobs." Id. at
836. There, the record showed no evidence that secretly recording
police "would appreciably alter their ability to protect the public
either in gross or at the retail level of more individualized
interactions." Id.
There is yet another reason Pitta's claim fails. Our
cases have repeatedly framed the right to record public information
as linked to the right of the public to receive this information.
Glik held that recording government officials in public spaces was
a protected First Amendment right because "[g]athering information
about government officials in a form that can readily be
disseminated to others serves a cardinal First Amendment interest
in protecting and promoting 'the free discussion of governmental
affairs.'" 655 F.3d at 82 (quoting Mills, 384 U.S. at 218).
Because "'the First Amendment . . . prohibit[s] government from
limiting the stock of information from which members of the public
may draw,' . . . [a]n important corollary to this interest in
protecting the stock of public information is . . . [the] 'right
to gather news from any source by means within the law.'" Id.
(emphasis added) (first quoting First Nat'l Bank, 435 U.S. at 783,
then quoting Houchins v. KQED, Inc., 438 U.S. 1, 11 (1978)
(internal citations omitted)). Similarly, Project Veritas
recognized First Amendment protection for secretly recording
police officers (extending from prior precedent that protected the
- 25 - open recording of police, see Glik, 655 F.3d at 84; Gericke, 753
F.3d at 7), because these recordings promote the "cardinal First
Amendment interest in protecting and promoting the free discussion
of governmental affairs," among other grounds, 982 F.3d at 832
(emphasis added) (internal citations omitted). No such interest
is served by video recording an IEP Team Meeting because such a
recording is not intended to be disseminated to the public.
Finally, we add that even if Pitta had a First Amendment
right to video record his child's IEP Team Meeting, which he does
not, his claim would fail. "Even protected speech is not equally
permissible in all places and at all times." Cornelius, 473 U.S.
at 799; accord Glik, 655 F.3d. at 84 (holding a First Amendment
right to video record "may be subject to reasonable time, place,
and manner restrictions"); Gericke, 753 F.3d at 7 (holding
"[r]easonable restrictions on the exercise of the right to film
may be imposed when the circumstances justify them"). Here, the
District's prohibition on video recording these meetings is
content neutral and narrowly tailored to its significant
governmental interest in promoting candid conversations in the
discussion or development of IEPs in order to provide students
with a "free appropriate public education" ("FAPE") under the
Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C.
§§ 1400-1482. The policy also leaves open several alternative
- 26 - channels for collecting and recording information from IEP Team
Meetings.
On the record before us, the District's policy is content
neutral.10 The policy does not "'draw[] distinctions based on the
message a speaker conveys.'" Rideout v. Gardner, 838 F.3d 65, 71
(1st Cir. 2016) (quoting Reed v. Town of Gilbert, Ariz., 576 U.S.
155, 163 (2015)). The policy also does not "discriminat[e] among
viewpoints" or "regulat[e] speech based on 'the specific
motivating ideology or the opinion or perspective of the speaker.'"
Reed, 576 U.S. at 168 (quoting Rosenberger v. Rector and Visitors
of Univ. of Va., 515 U.S. 819, 829 (1995)). "The government's
purpose is the controlling consideration" for whether a
restriction is content neutral, and here, the policy "serves
purposes unrelated to the content of expression." Ward v. Rock
Against Racism, 491 U.S. 781, 791 (1989). It thus "require[s] a
10Pitta argues to us that the District's prohibition on video recording was a viewpoint-based restriction because in his view it was "in direct response to [his] revealing the highly unethical and potentially unlawful actions of the school district['s] administrator" and because there was no written policy on video recording at the time. Policies need not be written and Pitta has not argued that other parents were not subjected to the same policy. Further, as Gericke held, a "[r]easonable restriction[] on the exercise of the right to" record may take a variety of forms, including not only a "preexisting statute, ordinance, regulation, or other published restriction with a legitimate public purpose," but also "a reasonable, contemporaneous order[.]" 753 F.3d at 7-8.
- 27 - lesser level of justification" than a content-based restriction.
Rideout, 838 F.3d at 71.
Content-neutral regulations "are subject to intermediate
scrutiny, which demands that the law be 'narrowly tailored to serve
a significant governmental interest.'" Id. at 71-72 (quoting Ward,
491 U.S. at 791). "A speech restriction is sufficiently narrowly
tailored so long as the 'regulation promotes a substantial
government interest that would be achieved less effectively absent
the regulation.'" Signs for Jesus v. Town of Pembroke, 977 F.3d
93, 106 (1st Cir. 2020) (quoting Ward, 491 U.S. at 799). "The
application of intermediate scrutiny also accords with the
approach that we took in Glik and Gericke, even though neither
case explicitly named the level of scrutiny deployed." Project
Veritas, 982 F.3d at 835.
The purpose of the District's video recording
prohibition is to serve its "significant governmental interest,"
see Rideout, 838 F.3d at 72, in meeting its responsibilities under
the IDEA. The IDEA provides federal funding to states to assist
them with educating children with disabilities and imposes
requirements, including that schools must provide all children
with disabilities with a FAPE "'in conformity with the [child's]
individualized education program,' or IEP." Parent/Pro. Advoc.
League v. City of Springfield, 934 F.3d 13, 19 (1st Cir. 2019)
(alteration in original) (quoting 20 U.S.C. § 1401(9)(D)).
- 28 - The IDEA requires that IEP Team Members create a written
IEP tailored to the "unique needs" of the student that expressly
addresses a number of sensitive and personal issues and questions.
20 U.S.C. §§ 1400, 1414. These include "a statement" regarding
"how the child's disability affects the child's involvement and
progress in the general education curriculum," "a statement of
measurable annual goals, including academic and functional goals,"
"a description of how the child's progress toward meeting the
annual goals . . . will be measured," and "a statement of the
special education and related services and supplementary aids and
services, based on peer-reviewed research to the extent
practicable, to be provided to the child, or on behalf of the
child, and a statement of the program modifications or supports
for school personnel that will be provided to enable the child
. . . to advance appropriately toward attaining the annual goals."
20 U.S.C. § 1414. As the appellees argue, "as an integral
component to their ability to facilitate the sort of earnest
discussion necessary to yield an appropriate IEP, IEP meeting
participants must enjoy wide latitude to engage as comfortably as
possible in a candid exchange of observations and ideas."
Promoting candor and protecting sensitive conversations
in IEP Team Meetings are "purposes unrelated to the content of
- 29 - expression." Ward, 491 U.S. at 791. 11 The District's policy
prohibiting video recording of these meetings, which could stifle
these discussions, also "promotes a substantial government
interest that would be achieved less effectively absent the
regulation." Id. at 799.
For these reasons, we affirm the judgment of the district
court.
11 Pitta, allegedly relying on a DOE guidance document, argues for the first time in his reply brief that he needs to video record his child's IEP Team Meeting to meaningfully assert his parental rights protected by the IDEA. In any event, this is not a First Amendment claim and is waived. His belated claim is an administrative claim subject under the IDEA to exhaustion before it may be brought as a civil action in federal court. See 20 U.S.C. § 1415(l) (holding that "before the filing of a civil action . . . seeking relief that is also available under [the IDEA], the [IDEA's administrative] procedures . . . shall be exhausted"); see also Parent/Pro. Advoc. League, 934 F.3d at 20- 21.
- 30 -