Equal Protection Project Files Supreme Court Brief Supporting School Parents First Amendment Rights

Equal Protection Project Files Supreme Court Brief Supporting School Parents First Amendment Rights

We have been tracking a case out of Massachusetts where parents of a special needs child were prevented from recording a zoom call with school administrators to discuss their child’s unwanted removal from his school’s special needs program.

The case has now made it all the way to the United States Supreme Court, and the parents are represented there by the Goldwater Institute, a longstanding organization founded in 1988 and “dedicated to advancing the principles of limited government, economic freedom, and individual liberty, with a focus on education, free speech, healthcare, equal protection, property rights, occupational licensing, and constitutional limits.”

Boston-area dad Scott Pitta wanted to get his public school district on the record after it tried to remove critically important services from his son, who has special needs.

Today, Goldwater is urging the Supreme Court to stand up for his rights!https://t.co/WV5dZbwGix pic.twitter.com/CWCD9jiwXP

— Goldwater Institute (@GoldwaterInst) April 3, 2024

This short video from the Goldwater Institute explains the case well:

As the video explains, school administrators refused to let Scott Pitta video record the meeting held to discuss the Pitta’s son’s removal from the school’s special needs program, and that refusal followed the school’s inability, for whatever reason, to produce accurate records of what had happened at a previous zoom meeting.

So Mr. Pitta, himself an attorney, filed suit on his own, or pro se, against the school district in federal court in Massachusetts.

That case, Pitta v. Medeiros, was filed on September 28, 2022 against the local school district and the director of special ed (Dina Medeiros, hence the case name), and in the Complaint Pitta alleged a violation of his First Amendment right to record governmental officials.

Less than 30 days after Pitta filed his case, the defendants moved to dismiss the case, arguing that there was no First Amendment right to record governmental officials, and the federal district (trial-level) court agreed and granted the motion dismiss. The court cited a First Circuit federal court of appeals (which covers Massachusetts, as well as Rhode Island, Maine, and New Hampshire) case called Glik v. Cunniffe, which held that “the protections of the First Amendment ‘encompass[] a range of conduct related to the gathering and dissemination of information,’ including ‘[t]he filming of government officials engaged in their duties in a public place.'” But the court held that no First Amendment protection existed in the private video recording case because it was “highly doubtful that a…meeting—particularly one held by videoconference—qualifies as a ‘public space.'” The court also wasn’t sure, based on Glik, which involved the video recording of police, whether the school administrators here were public officials or not. Finally the court said that the First Amendment only kicks in if there is going to be some public use of the video or some public purpose, i.e. sharing it with the public for the recording:

The court in Glik reasoned that the right to record received First Amendment protection because ‘[g]athering information about government officials in a form that can readily be disseminated to others’ promotes ‘the free discussion of governmental affairs’ and ‘aids in the uncovering of abuses,’ [but] plaintiff apparently seeks to use the recording primarily for his own purposes, rather than to expose government misconduct to the public.”

So, no First Amendment right to record:

Under the circumstances, the Court concludes that plaintiff does not possess a First Amendment right to video record a private meeting with school district officials concerning the suitability of a [special needs plan] for his minor child. Accordingly, the First Amendment claim will be dismissed for failure to state a claim.

So Scott Pitta, once again on his own, appealed that decision to the First Circuit, which then affirmed the district court’s decision in January of this year:

Pitta’s argument ignores established limitations in First Circuit law, which permit recording of government officials performing their duties only in indisputably public places in full view of the public, and even then, only when the act of filming would not hinder officials in the performance of their public duties and would serve public interests.

Our cases have repeatedly framed the right to record public information as linked to the right of the public to receive this information. Glik held that recording government officials in public spaces was a protected First Amendment right because ‘[g]athering information about government officials in a form that can readily be disseminated to others serves a cardinal First Amendment interest in protecting and promoting the free discussion of governmental affairs.’

[underline in First Circuit opinion, bold added]

So the bottom line is that, in the First Circuit, if you want to record government officials in a zoom call (i.e. not government officials in public, like at town hall) you are out of luck, especially if you aren’t going to immediately share the video with the public.

But, not so fast.

Scott Pitta disagreed with this decision, and, with the assistance of the Goldwater Institute, as mentioned, has filed a Petition for Certiorari, or a request to review the case, with the United States Supreme Court:

The First Circuit rejected Petitioner’s First Amendment claim that he had a right to video-record the virtual…meeting [because it held] that the First Amendment protects recording ‘government officials performing their duties only in indisputably public places in full view of the public, and even then, only when the act of filming . . . would serve public interests,’ [but] this rule stands in stark contrast with the holdings of other circuits. The circuit courts are currently and irreparably divided over whether the act of video recording is expressive conduct entitled to full First Amendment protection per se, or whether it is only protected as a corollary to other activities that the First Amendment protects, such as the dissemination of information and the discussion of governmental affairs.

One thing to remember is that at this point the game is NOT to win the case, but rather just to get SCOTUS to review the case, which is extremely difficult given that the Supreme Court only reviews 4% of the cases submitted to it for potential review (“The Supreme Court agrees to hear about 100-150 of the more than 7,000 cases that it is asked to review each year.”).

Luckily, there does appear to be a wicked “circuit split” in this case, meaning that about half of the federal courts of appeals think recording of government officials is protected by the First Amendment ONLY if the recording is done in public and then only if the recording party wants to share the video with the public, which the other half of the circuit courts believe video recording is “inherently expressive” and therefore deserving of First Amendment protection regardless of the location or purpose of the recording. And, “[t]he Supreme Court frequently agrees to hear cases in order to resolve circuit splits by creating a unified interpretation of the law which is then binding on all lower courts,” so there is hope that the Court will take this case.

The Petition’s other arguments include that the First Circuit’s opinion violates SCOTUS binding precedent (i.e. prior cases) and that a “better framework for evaluating whether the First Amendment protects a specific decision to video-record an event, meeting, or interaction is focusing on the location of the individual doing the recording.”

We’re not sure the Court will take the case, but to help out with that the Equal Protection Project (EqualProtect.org) has filed an amicus curiae, or “friend of the court” brief with the Supreme Court (full brief embedded at the end of this post), urging the Court to take the case.

Read the whole thing, but in it we make some key arguments that complement those made by the Petitioner.

First, we emphasize that while there IS a gaping circuit split that demands the Court’s attention to resolve, and the First Circuit’s opinion was against the weight of binding SCOTUS precedent, there is a more important issue at stake here, i.e. TRUTH:

The decision below also conflicts with a fundamental purpose of the First Amendment, which we believe is the direction in which this Court’s jurisprudence is moving and should continue to develop: The First Amendment protects the American people’s “search for truth.” And a fulsome search for truth frequently requires the ability to document and preserve information uncovered in the course of this search.

[emphasis added]

We then quote a law review article by Professor Seth F. Kreimer of the University of Pennsylvania Law School:

[T]he modern process of image capture is an essential element in producing, and ultimately disseminating, photos, videos, and montages which modern First Amendment doctrine solidly recognizes as protected media of communication. The increasing integration of image capture with communication devices ranging from cell phones to iPhones to PDAs makes it clear that contemporary image capture is part of a broader digital ecology of communication. One might try to dissect the medium into its component acts of image acquisition, recording, and dissemination and conclude that recording is an unprotected ‘act’ without an audience. But this maneuver is as inappropriate as maintaining that the purchase of stationery or the application of ink to paper are ‘acts’ and therefore outside of the aegis of the First Amendment. . . . Supreme Court majorities have regularly invoked the First Amendment to invalidate regulations that impose burdens on ‘actions’ without audiences where the targets are essential preconditions to communication.

[emphasis added by EPP in brief]

We then summarize our argument:

Unfortunately, some of the Circuit Courts of Appeals are moving in an entirely different direction, cramping the vital role of the First Amendment in our societal search for truth. We strongly urge this Court to take this opportunity to clarify that the right to record video – in this case during a non-public administrative meeting with Petitioner – extends to all governmental conduct that occurs within the lawful presence of the recorder. Doing so will facilitate that most important of societal values: Truth.

[emphasis added]

Our next argument is that the First Circuit’s opinion, which allows school administrators to prevent documentation of their activities, will only lead to more secrecy by schools seeking to hide their activities from parents:

Moreover, we are concerned that the Court of Appeals’ decision below would, if permitted to stand, effectively greenlight the insidious efforts of some school administrators to hide unlawfully discriminatory policies and procedures from public view and knowledge. This is not hyperbolic speculation. Educational secrecy and deliberate movement underground of discriminatory policies and procedures already has become a significant problem, for example, in EPP’s home state of Rhode Island, where parents who have inquired into secretive school policies have been sued, charged with outrageous financial bills simply for requesting school records that are statutorily mandated to be open to the public, and harassed at both public and secretive meetings of school administrators.

[emphasis added]

We then tell the story of Nicole Solas, Rhode Island mother and sometimes contributor to Legal Insurrection, who found herself on the wrong end of the Rhode Island school system’s ire for having the audacity to ask what was going on at her kid’s school:

Here is how Ms. Solas described her experience:

I . . . asked to see the elementary school curriculum. I asked the principal, the school committee, the superintendent, the director of curriculum, and even the legal department at the Rhode Island Department of Education to allow me to view the curriculum. The school’s Director of Curriculum told me she was unavailable and never responded when I said I could view the curriculum on any day and time. Then a school committee member directed me to file an Access to Public Records Act (APRA) request on the school district website to obtain the curriculum. After thirty days, I received an incomplete curriculum and filed an APRA complaint with the Attorney General.
* * *
At this point I had reason to believe that the school district was hiding information and deliberately stonewalling me. I started using the APRA request google link on the school district’s website to request public documents that might answer my questions about CRT, gender theory, and other concerns. When I requested the emails of a school committee member the estimate of what they would charge me came back as $9,570. Who can afford that?

Ms. Solas reported that other Rhode Island residents faced similar exorbitant charges for school records and, after sharing information she had learned with other parents, Ms. Solas discovered that the local school board was considering suing her:

Then, on Friday, May 28, the school committee set an agenda item for a public meeting to discuss ‘filing litigation against Nicole Solas to challenge the filing of over 160 APRA requests.’
* * *
My school committee now is considering suing me because I submitted a lot of public records requests to get answers to my questions which the School District would not answer. This same school committee which told me to use a statutorily prescribed process to obtain one piece of information (curriculum) is now having a public meeting to discuss suing me for using the same statutorily prescribed process to obtain other information. The message was clear: ask too many questions about your child’s education and we will come after you.

Ms. Solas ultimately was, in fact, sued – but not by the local school board. Rather, it was the teachers’ union that filed suit and sought an emergency injunction to prevent the release of school curriculum records to Ms. Solas.

We then noted that this type of secrecy is occurring all over the country:

Unfortunately, EPP is learning that Ms. Solas’ case is merely the tip of the iceberg. School boards across the country deliberately – and, we believe, insidiously – are hiding critical educational information from parents of elementary and secondary school children. In Colorado, for example, a court was required to force a school board to release details of secret closed-door meetings; in Maine, a school board was sued by parents alleging that their children secretly were being encouraged to surreptitiously “transition genders”; and in Pennsylvania, yet another school held secret curriculum meetings to discuss changes to their educational programs.

We then summarized:

The Court of Appeals’ decision below, if permitted to stand, likely would make things much worse. A rule that blanketly permits school administrators to prohibit video recording of critically important meetings, discussions, and decisions invariably would encourage administrators to adopt such policies, and generally would embolden their ever-growing efforts to hide sometimes unlawful policies, practices, and procedures from interested parents and others. As usual, the First Amendment – as properly construed – offers a vital protection against such secretive governmental conduct by ensuring that interested members of the public have a Constitutional right to document and record such official proceedings. This Court should grant review here for the purpose of ensuring this fundamental freedom.

[emphasis added]

We are hoping and praying that the Supreme Court takes this case and eventually rules in Pitta’s favor. School parents across the country face these issues daily, and help can’t come soon enough.

——————————–

Here is our brief:

Donations tax deductible
to the full extent allowed by law.