Monday, January 22, 2007
Government agents (FBI and the U.S. Attorney's Office) attempted to get Zieper to take down the website, but he refused to do so. The FBI and the assistant U.S. attorney spoke with the individual who had put the website up for Mr. Zieper and either persuaded or coerced (depending on whose side you are on) her to remove the site. Zieper sued the Attorney General (Reno), the U.S. Attorney (White), the director of the FBI (Freeh), the FBI agent and the assistant U.S. attorney. That latter two were also sued in their individual capacities.
The defendants moved for summary judgment after discovery. The District Court granted the motion, finding that no reasonable jury could find that the FBI agent's contact with Zieper ammounted to threats or coercion in violation of the First Amendment, but that there was a triable issue of fact on the issue of coercion as to the conversation with Zieper's webmaster. Nevertheless, the Court held that the claims were barred by the doctrine of qualitifede immunity because reasonable officers could have disagreed about the legality of the defendants' officers.
Zieper appealed, and the Second Circuit affirmed. While disagreeing that a reasonable jury could not have found that the FBI agent's conversations with Zieper and his attorneys gave rise to a First Amendment violation, it held that the claims were barred by the doctrine of qualified immunity.
At the time of the defendants' actions, it was well-established that they could exhort private entities to remove speech so long as they did not engage in any threat, coercion or intimidation when doing so. The Second Circuit acknowledged that the defendants walked a difficut line in seeking to exort Zieper to remove the video. The Court held, however, that the Court' s prior precedents did not make clear on what side of the line their actions fell. Accordingly, they were entitled to qualified immunity. The Court note that in finding that their actions could give rise to a First Amendment violation, future government agents would be on notice that such actions might expose them to liability and that they would no longer be entitled to qualified immunity for such actions.
The decision can be found here.
Oh, and thanks to Decision of the Day for alerting me to this case. Rob Loblaw, the pseudonomous author of that blog, is my new hero (right up there with Howard Bashman of How Appealing and David Lat of Above the Law.