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When a concerned parent met with his child’s school superintendent, he informed the administration that he would be filming the encounter and potentially sharing it with others. At the time, no one raised any concerns and the school officials allowed him to film—until that parent, plaintiff Inge Berge, posted the video online along with commentary criticizing the school. Suddenly, the school district threatened him with a lawsuit, wrongfully claiming that his recording violated the Massachusetts Wiretapping Statute. Before the school district sued, Berge filed his own First Amendment lawsuit against the school for retaliating against him because of his protected speech.

The First Amendment protects all Americans from retaliation against them for exercising their rights to openly criticize government officials. But a federal court ruled that while the school did violate the First Amendment, its officials could not be sued because of qualified immunity. In other words, the court reasoned that it wasn’t clear beforehand that the school was violating the First Amendment, so school officials were immune from liability. 

That is wrong. The purpose of the First Amendment is to protect the rights of Americans to speak, even—and especially—when officials dislike their speech. Retaliatory action taken to punish free speech is a First Amendment violation. That includes making empty legal threats against a citizen for publishing an openly recorded video. On March 2, 2023, FIREjoined the Institute for Justice’s amicus brief filed in the United States Court of Appeals for the First Circuit, asking the court to reverse the district court and make clear that qualified immunity is limited in scope and does not allow government officials to violate the First Amendment with impunity.