First Amendment Auditor Case Decided in Massachusetts
A recent case decided by the First Circuit Court of Appeals regarding a lawsuit brought by a citizen-journalist (sometimes referred to as a First Amendment auditor) provides some interesting insight on how a federal court views a citizen recording or filming public officials or employees, even if the case is not binding on Illinois courts. Berge v. School Committee of Gloucester, Mass, et. al.
In 2022, a citizen-journalist went to the local school superintendent's office to buy tickets to his child's sold-out play. He stated his objective as wanting to ask school officials why the school was capping the number of attendees where the state had previously lifted its COVID-19 mandates. While at the school offices, he was visibly filming as he spoke with various school employees about his objections to the school's policy. One of the school employees asked him to stop recording, and another employee closed his door when the citizen refused to stop filming. After the citizen left the building, he uploaded the recording to Facebook.
A school employee sent a letter to the citizen-journalist within a few hours of the recording being posted to social media demanding that it be removed. The letter claimed that the recording violated a state law that requires two-party consent to record others.
The citizen-journalist then filed a lawsuit against the school committee and three of the school employees claiming that their letter and conduct violated his First Amendment rights. He asked the court to award him damages and to issue an order to stop the school defendants from continuing to threaten him to remove the recording. After the school was served with the lawsuit, the school's attorney contacted the citizen to inform him that the school committee would not take any action against him relating to the recording and the letter the school sent to him was "revoked."
The lawsuit was initially dismissed by the district court on the basis that the employees had qualified immunity for the First Amendment claims, and on mootness grounds since the school had stated it would not take action against the citizen-journalist for the recording. The citizen then appealed.
On appeal, the First Circuit Court of Appeals reversed the district court on the first claim, finding that the individual school defendants did not have qualified immunity for the First Amendment claims, for the following reasons:
First, the Court found that the state law prohibiting recording without two-party consent only applied to secret recordings, and did not apply in this case where the citizen-journalist was openly recording in public areas of the school offices.
Second, the Court held there is a "right to publish" under the First Amendment, and the citizen-journalist's posting of his recordings of his discussions with school officials fell squarely under that constitutional protection. The Court found that his questioning of school officials about the school's COVID-19 policy was a "matter of public concern" that he had a constitutional right to publish by posting his recording on Facebook.
Third, the Court determined that the school employees should have known that the posting of the recordings involving matters of public concern (i.e., his objection to the school's COVID-19 policies) were protected by existing law, so they had no qualified immunity for the First Amendment retaliation claims in the lawsuit.
Although the Court did allow the First Amendment retaliation claims to move forward, it upheld the district court's dismissal of the other claims based on "mootness" since the school had already provided the relief that the plaintiff was asking for when the school confirmed it would not challenge the legality of the recordings themselves.
As noted above, this case is not binding in Illinois, but it is instructive to government officials and employees on the potential protections for the publication of recordings of citizen encounters with public officials or employees in public areas where an encounter relates to a matter of public concern.
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