Michael Zieper, Mark Wieger, Becamation v. Joseph Metzinger, Lisa Korologos, Docket No. 05-5250-Cv

Citations: 474 F.3d 60; 35 Media L. Rep. (BNA) 1331; 2007 U.S. App. LEXIS 1144Docket: 60

Court: Court of Appeals for the Second Circuit; January 18, 2007; Federal Appellate Court

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The case involves plaintiffs Michael Zieper and Mark Wieger, who contend that their First Amendment rights were violated when federal authorities attempted to remove Zieper's film, "Military Takeover of New York City," from the internet. The film depicted a fictional military takeover of Times Square on New Year's Eve 1999 and was hosted by Wieger's company, BECamation. The FBI and the U.S. Attorney's Office for the Southern District of New York, upon reviewing the film, identified it as fictional but still sought its removal due to concerns about public safety. 

The court addressed two primary issues: whether the defendants were entitled to summary judgment on the First Amendment claim and whether the plaintiffs' claims were barred by qualified immunity. The court ruled that the defendants were not entitled to summary judgment regarding the First Amendment violation but did grant qualified immunity, affirming the district court's decision. 

Key facts include the film's publicized content, the involvement of law enforcement after the NYPD alerted the FBI about the film, and the procedural steps taken to gather information about Zieper's website, including a grand jury subpoena served on GTE, the internet service provider. The case underscores the tension between governmental action for public safety and the protection of free speech rights.

At approximately 7 p.m., Zieper was not at home, so a West Caldwell police officer paged him, informing him that FBI agents were outside his residence wanting to talk. Zieper stated he would not return home that night and ended the call without mentioning the video in question. Metzinger, an FBI agent, subsequently paged Zieper and identified himself, indicating the agents were at his home due to a film related to a website. During their five-minute conversation, Metzinger expressed concerns that the film could upset visitors to New York and negatively impact local businesses, asking if the FBI could prevent its airing. Zieper was reluctant to provide information but suggested that Metzinger might have the power to intervene. He noted the video was set to air that evening on a local news station.

After failing to reach Zieper the next day, Metzinger left a voicemail, which Zieper's attorneys returned. The attorneys asserted that the film was fictional and accused Metzinger of infringing on Zieper's First Amendment rights. Although the attorneys offered to meet, Metzinger declined, informing them that more agents were en route to Zieper's home, though he later halted their advance after the call.

Four days later, Metzinger and Assistant U.S. Attorney Korologos contacted Wieger, the host of the website for the video. They identified themselves and expressed concern that the film might incite a riot. Wieger clarified he was merely hosting the site and believed the film was fictional. Metzinger and Korologos urged him to take the video offline, stating that they had traced the site to him and that GTE would remove it if he did not comply. Wieger asked if he was "in trouble," but received no clear response. Ultimately, Wieger agreed to block access to the site during the call, but later clarified that it would still be accessible to some users.

A conversation occurred in which one party inquired about preventing public access to a website, leading to the removal of files as the only solution. After this action, it was deemed unnecessary to inform Zieper about the file removal. Subsequent to this interaction, Wieger made the video accessible again on the website without any legal intervention. On December 22, 1999, the plaintiffs filed a lawsuit against several officials, including Attorney General Janet Reno and FBI Director Louis Freeh, in their official and individual capacities, seeking unspecified damages. The district court dismissed the declaratory and injunctive claims due to lack of standing and transferred the remaining claims against Metzinger and Korologos for alleged First and Fifth Amendment violations to the Southern District of New York. Metzinger and Korologos sought dismissal based on qualified immunity, but the district court required further discovery. After discovery, the defendants moved for summary judgment, which was granted. The court found no reasonable jury could establish that Metzinger's contact with Zieper constituted threats violating the First Amendment, although there was a factual dispute regarding coercion in the conversation with Wieger. Ultimately, the court determined that qualified immunity barred the plaintiffs' claims, as reasonable officers could disagree on the legality of the defendants' actions. The summary judgment was affirmed, and it was noted that First Amendment rights can be infringed through governmental actions that create a chilling effect on speech, distinguishing between convincing and coercive attempts to suppress expression.

The district court determined no triable issue of fact existed regarding whether the defendants' conduct towards Zieper violated the First Amendment. It concluded that a juror could not reasonably interpret the defendants' communications as implying potential punishment for Zieper's refusal to comply with their requests, primarily because Metzinger’s tone was polite and non-threatening, and his language did not reference criminal statutes or consequences. However, the court acknowledged that the tone and precise wording are not the sole factors in assessing whether a public official's actions crossed the line from persuasion to coercion. The presence of regulatory authority is relevant to determining if comments were perceived as threatening or coercive.

The facts included an FBI agent contacting Zieper to express concern about his video and requesting to discuss its public visibility, without clarifying that his actions were lawful or that he would not face repercussions. Subsequent communications between Zieper's attorneys and Metzinger indicated that Zieper intended to maintain the video's public status, yet Metzinger stated that more FBI agents were en route to Zieper's home, which could suggest potential legal consequences for Zieper's noncompliance. Thus, while not explicitly stated, the actions of sending multiple law enforcement officers to Zieper's home could reasonably imply a threat of legal repercussions.

Government officials' repeated calls to Zieper, including two on the first evening and another the following day, despite his indication to return their call, raise concerns regarding implicit threats. Relevant case law suggests that unannounced police visits and follow-up actions can indicate coercive intent in efforts to regulate speech. After Zieper's attorneys communicated their view that the officials' actions violated the First Amendment, a reasonable juror could interpret Metzinger's statements about the FBI's potential actions as coercive attempts to compel Zieper to remove his video from the internet. Consequently, the court determined that it erred in concluding otherwise.

The defendants claimed qualified immunity, which protects government officials from damages if their actions do not violate clearly established rights. To assess this, the court first confirmed that the alleged facts indicated a constitutional violation. Then it analyzed whether the defendants' actions infringed upon rights that were clearly established at the time. While it is well-known that the First Amendment prohibits implied threats to suppress protected speech, the court emphasized that the specific contours of the right must be clear enough for a reasonable official to recognize a violation. At the time of the defendants' actions, it was established that officials could request the removal of speech from private entities, provided they did not use threats or coercion. Thus, the defendants' request for Zieper to remove the video could be lawful if it lacked coercive elements.

Defendants faced the challenge of articulating government concerns over a video while avoiding any interpretation of coercion. They were permitted to communicate with plaintiffs regarding the government's apprehensions and request the video's removal. However, a reasonable juror might find that some defendant actions blurred the line between convincing and coercing. Despite potential First Amendment violations, defendants could claim qualified immunity if it was not clear to a reasonable officer that their actions were unlawful. Pre-existing case law did not indicate that defendants' behavior crossed the coercive threshold, as previous rulings involved more overtly threatening conduct. Comparisons were made to Bantam Books, where explicit threats of legal action were issued, and Rattner, where a commercial boycott was threatened, both of which were more direct than the defendants' actions in this case.

Approximately three weeks after a Village Trustee debate, the defendant indicated potential economic boycotts against about 40 local businesses he frequented. This action was perceived by several Chamber directors as reminiscent of McCarthyism, implying threats of economic sanctions or discriminatory enforcement if they allowed further publications by Rattner. In contrast, Metzinger's communication to Zieper regarding a video was more benign; he merely suggested it could upset visitors and affect local businesses, asking if the FBI could intervene to prevent its viewing. Previous cases, such as Hammerhead Enterprises, showed no First Amendment violation when officials expressed concerns over the impact of a product. Metzinger’s subsequent comments to Zieper's attorneys could be seen as coercive, but they were arguably a response to the attorneys’ belief that the issue was resolved. Korologos’ statement about an upstream provider's willingness to remove the video was also interpreted as non-threatening, lacking the suggested leverage seen in Rattner. The district court found that a jury might view Zieper's video comment as coercive due to its resemblance to criminal language; however, the defendants were entitled to qualified immunity, as their comments could reasonably be seen as informational rather than threatening prosecution. Their conduct did not approach the overt threats of prosecution seen in Bantam Books, where multiple coercive notices were issued followed by police actions.

Bantam Books and Rattner cases were found not closely analogous to the current situation, thus failing to provide defendants with adequate warning regarding the legality of their actions. Appellants expressed concern that granting qualified immunity could shield officials using ambiguous threats to suppress free speech, but the court determined this concern was unfounded. The court clarified that while some cases may require officials to recognize when their actions could be perceived as threatening, the defendants in this case did not reach that threshold. A reasonable juror could find a violation of the First Amendment; however, the defendants’ actions were viewed as a reasonable misjudgment rather than a clear understanding of illegality. 

The court emphasized that qualified immunity exists to protect public officials from liability for honest mistakes made in their duties, particularly when quick decisions are necessary. Here, the defendants acted in light of an imminent publicizing of a video, which could have prompted concerns about potential reputational harm. The standard for qualified immunity allows for errors in judgment as long as they are not clearly incompetent or unlawful. Therefore, the defendants were granted qualified immunity, and the district court's ruling was affirmed. Additionally, the defendants’ motivations for their actions were deemed irrelevant to the determination of whether their conduct implied threats of punitive action. Finally, the court noted that the defendants are also entitled to qualified immunity concerning the plaintiffs' Fifth Amendment claims due to their reasonable belief in the legality of their actions.