NEFAC, ACLU Defend ‘Clearly Established’ Right to Publish Information on Matters of Public Concern

CONTACT Justin Silverman | 774.244.2365 |


The New England First Amendment Coalition recently defended the right to publish information about matters of public concern, arguing that the right is clearly established and qualified immunity should not be granted to Massachusetts school officials who tried to prevent a citizen from exercising this right.

“When information involves a matter of public concern, the First Amendment protects publishers from both prior restraint and subsequent punishment, absent a demonstrated need to vindicate a state interest of the ‘highest order’,” wrote NEFAC and the ACLU of Massachusetts in a March 2 amicus brief.

The groups submitted the brief in Berge v. School Committee of Gloucester, et. al., a case before the U.S. Court of Appeals for the First Circuit. The plaintiff in the case openly recorded a video in a public school building without violating any law and then published the video online. School officials demanded the plaintiff remove the video by falsely claiming he violated a state wiretapping statute.

When the plaintiff filed a lawsuit claiming a violation of his First Amendment rights, a lower court dismissed portions of his complaint while asserting that the defendants were entitled to qualified immunity. Government officials can be protected by qualified immunity when the rights they violate are not “clearly established.”

As NEFAC and the ACLU of Massachusetts explained, however, the plaintiff’s right to post the video was clearly established. Describing the school’s actions as an “obvious” First Amendment violation, the groups wrote in their brief that officials “cannot seek to censor or suppress speech about the government that they dislike. That is a principle of constitutional bedrock.”

NEFAC is the region’s leading advocate for the First Amendment and the public’s right to know about government. The coalition regularly drafts and joins amicus briefs in cases involving First Amendment freedoms and the public’s right to know. All coalition briefs, letters and statements can be found here.

NEFAC was formed in 2006 to advance and protect the Five Freedoms of the First Amendment, including the principle of the public’s right to know. We’re a broad-based organization of people who believe in the power of an informed democratic society. Our members include lawyers, journalists, historians, academics and private citizens.

Our coalition is funded through contributions made by those who value the First Amendment and who strive to keep government accountable. Please make a donation here.

Leadership Circle donors include the Rhode Island Foundation, Hearst Connecticut Media Group, The Boston Globe, Paul and Ann Sagan, and the Robertson Foundation. Major Supporters include Boston University, the Academy of New England Journalists, the Society of Professional Journalists Foundation, Genie Gannett for the First Amendment Museum, Linda Pizzuti Henry, the Champa Charitable Foundation Fund, Connecticut Public and GBH-Boston.