In the spring 2023 semester, the Vanderbilt First Amendment Clinic submitted a brief on behalf of the Clinic and the National Press Photographers Association in a First Circuit Court of Appeals case, Berge v. School Committee of Gloucester. In its recent decision, the Circuit Court overturned part of the District Court’s ruling and remanded the case for further proceedings on the First Amendment retaliation claim.
The case arose when Berge recorded public school officials in a public building and then posted it. He was subsequently threatened with legal action if he did not remove the video. Berge instead brought action against the Gloucester Public School District for First Amendment violations. The matter had been dismissed by the District Court based upon qualified immunity, the immunity of public officials from prosecution for their official duties.
In their brief, amici argued that the First Circuit had recognized a First Amendment right to record public officials and publish information in Glik v. Cunniffe in 2011. Applying Glick’s reasoning to the school district: the filming of government officials (e.g., police officers, town officials, etc.) in a public place when they are performing their responsibilities, when it does not interfere with the performance of their duties, is constitutionally protected conduct.
The Circuit Court concluded that the First Amendment fundamentally protects the right to investigate and hold public officials accountable. This right is even more important when it is related to a matter of public importance. As the First Amendment Clinic highlighted, and the Circuit Court held, the First Amendment protects the right to engage in public discourse to ensure that the government is held accountable. Berge’s case can now continue and will proceed with further phases of litigation, including further fact-finding. Accordingly, the First Circuit’s decision helps to reinforce the broad protections of the First Amendment.
