Dan King
Dan King · March 2, 2023

ARLINGTON, Va.—Today, the Institute for Justice (IJ) submitted an amicus brief in a lawsuit before the 1st U.S. Circuit Court of Appeals. The case 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. 

In March 2022, Inge Berge wanted to buy tickets to attend his daughter’s middle school play, but he missed out on the tickets because the school was limiting capacity due to COVID-19. 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. But later that day, after Berge posted the interaction on Facebook, the superintendent’s office sent him a letter demanding he remove the video or face legal repercussions. 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.  

Knowing his rights had been violated, Berge filed a First Amendment retaliation lawsuit. The school then rescinded its letter demanding he take the video down, but the district court dismissed Berge’s retaliation claims against the school administration. The court ruled that the 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”—because the facts of this case did not exactly match those of any prior case. As explained in IJ’s brief, that is not how the qualified immunity doctrine works, even in the face of its unjustified expansions.  

“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 Berge was baseless, which is why they immediately rescinded their threat once he fought back.”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’s brief urges the First Circuit to overturn the lower court’s decision granting school officials qualified immunity and to 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,” added IJ Litigation Fellow Anna Goodman.