Parent openly records school officials, all hell breaks loose when it's aired

They 'knew their threat of legal action was baseless'

By Bob Unruh
Published March 12, 2023 at 12:26pm

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A parent in the Gloucester, Massachusetts, school district has gone to the 1st U.S. Circuit Court of Appeals to correct an apparent mistake made by a district court, which dismissed a lawsuit over his 1st Amendment posting of a recording of conversations with school officials.

The case, brought by Inge Berge against the school and officials Ben Lummis, Roberta A. Eason and Stephanie Delisi, has attracted a friend-of-the-court brief from the Institute for Justice.

The fight was over the school's threat to bring legal action against Berge over his decision to visit with school officials, record the conversations and post them online.

That's classical 1st Amendment-protected speech, the IJ said.

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The IJ said its brief was submitted to the appeals court in the case that seeks "to overturn a lower court’s ruling that shielded school administrators in Gloucester, Massachusetts, from accountability after they threatened a parent with legal action for recording and posting his public interaction with the school superintendent’s office."

It was last year that Berge wanted tickets to his daughter's middle-school play, but found they were sold out because of the school's audience-limiting COVID-19 agenda.

"Upset that he might miss his daughter’s play, he went to the superintendent’s office – which was open to the public – to ask if there was any way to create an exception so he could buy a ticket. Berge openly and obviously recorded his visit to the superintendent’s office and his discussion with the officials. He remained calm as he spoke with the officials, two of whom refused to talk while being recorded, and a third who said he would look into the situation," the IJ reported.

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Then Berge posted his recordings online and within hours the school threatened him with "legal repercussions" if he didn't remove the videos.

"This blatant effort to suppress Berge’s speech was based on a statute that only prohibits 'secret' recordings – but the letter itself made clear that there was nothing secret about what Berge did," the IJ said.

He filed a First Amendment retaliation lawsuit and the school abruptly withdrew its demand letter.

At district court, a judge dismissed Berge’s retaliation lawsuit, claiming officials were shielded by qualified immunity – a judicial doctrine that shields government officials from civil liability unless the unconstitutionality of their conduct was "clearly established," the IJ said.

But the IJ charged that qualified immunity doesn't apply.

"Some rights violations are so obvious that plaintiffs don’t have to go on scavenger hunts for previous cases with similar facts in order to move forward with a lawsuit," said IJ Attorney Jaba Tsitsuashvili. "School officials knew their threat of legal action against Mr. Berge was baseless, which is why they immediately rescinded their threat once he fought back."

IJ is urging the appeals court to reverse the decision and allow Berge’s First Amendment retaliation claims to move forward.

"Premeditated retaliation against someone for their First Amendment-protected speech is not the type of 'split-second' decision that even proponents of qualified immunity ever contemplated the doctrine protecting," said IJ 's Anna Goodman.

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