Can the FBI Crack Down on Fictional Material About Law Enforcement Tactics?
A Federal Appeals Court Finds First Amendment Issues, But Deems the Responsible FBI Agent and Attorney Immune From Damage Awards

By JULIE HILDEN

Monday, Feb. 19, 2007

In the New Yorker's latest issue, Jane Mayer describes the way in which the conservative politics of Joel Surnow, the creator of the Fox television series "24," often manifest themselves in the show's depiction of counterterror measures.

In addition, Mayer reports that the series -- which takes a sympathetic posture toward the torture of terrorist suspects and witnesses ­­‑‑ is well-received by many in the Bush Administration. No wonder: On November 11, 2001, Karl Rove himself convened a Hollywood panel to strategize about how the entertainment industry might help in the war on terror.

But what happens when fictional depictions of terrorism, counterterrorism, the FBI, or the military are far less attractive, in the government's eyes? A recent decision by the U.S. Court of Appeals for the Second Circuit shows, interestingly, that the government was highly sensitive to such issues even before 9/11.

In addition, I will argue, it shows that courts may be all too willing to let the government off the hook, when even implausible security issues are cited as the justification for the government's exertion of anti-free-speech pressure.

The Facts of the Second Circuit Case

The Second Circuit case arose when, in October 1999, Michael Zieper put a short film on the Internet that was entitled "Military Takeover of New York City." In the film, an unseen narrator ‑‑ with shots of Times Square in the background -- discusses plans for the takeover to occur on New Year's Eve 1999, claims the tape came from his brother in the army, and reports that his brother said copies were "floating around the base." However, the narrator also directly raises an issue about whether the tape is real or fake.

Initially, the FBI simply asked Zieper to remove the film ‑‑ apparently cognizant that it would be barred by the First Amendment from ordering him to do so. Zieper's attorneys also stressed this point to them later.

However, eventually, FBI agent Joseph Metzinger and Assistant United States Attorney Lisa Korologos got more aggressive. Metzinger sent a FBI agent and several police officers to Zieper's house. Nevertheless, Zieper held his ground.

Later, Metzinger and Korologos, in a conference call, pressured Mark Wieger, the owner of the web hosting service where the video appeared, to take the video down himself. Wieger, worried he might be "in trouble," capitulated ‑‑ at least, for a time. (He took down the video on November 15, then put it back up on November 26, after which the government didn't contact him again.) (For the full summary of the facts in the case, interested readers may consult pages 2 through 7 of the opinion.)

The District and Appellate Courts Agree: There Were First Amendment Issues for the Jury Here

With the help of the ACLU, Zieper and Wieger sued, invoking the federal statute that allows those whose constitutional rights have been violated to sue for money damages.

They claimed their First Amendments right had been violated. Both the district court and the Second Circuit agreed that "threats and coercion" by the government ‑‑ short of physical force or any formal punishment ‑‑ may, in some factual circumstances, violate the First Amendment. The key, as the Second Circuit explained, is to draw the line between "attempts to convince and attempts to coerce."

However, the district court thought that sufficient evidence of coercion existed for a First Amendment claim to go to a jury ‑‑ but only as to the website host. The Second Circuit, in contrast, found that, in theory, a First Amendment case could be based both on what happened to Zieper, and also, separately, on what happened to the website host.

Why the Plaintiffs Ultimately Lost: The Court Held Defendants Were Entitled to Qualified Immunity

Despite the Second Circuit's holding that there were First Amendment issues here that were strong enough for the case to go to the jury, it still dismissed the case, invoking the doctrine of qualified immunity.

Under this doctrine, a court must ask "whether the defendants' actions violated clearly established constitutional rights of which a reasonable person would have known." Reviewing prior precedent, the Second Circuit held that it would not have been clear to the defendants that they had crossed the line between convincing and coercing. If a reasonable person in the defendants' position thought the actions in pressuring plaintiffs to take down the video were only attempts to convince the plaintiffs to take down the video, then the defendants would be entitled to qualified immunity.

For instance, the Second Circuit noted, the key Supreme Court precedent, the Bantam Books decision, had involved "thinly veiled threats of persecution" - and the defendants had not gone that far. Moreover, given the panel's finding that coercion short of force or punishment might, in some circumstances, violate the First Amendment, that meant there were circumstances involving some more minor degree of coercive influence that did not violate the First Amendment. Thus, the panel concluded, the defendants had lacked "fair warning of the illegality of their actions," especially in light of the fact that they were "forced to act quickly" in this matter.

Why the Defendants Should Not Have Been Granted Qualified Immunity

The panel's holding was not only wrong; it was absurd. It could only have been reached by a blind faith in the claims of law enforcement, no matter how thinly-supported they are.

Consider, for example, the panel's decision to rationalize the defendants' supposedly understandable mistake on the ground that they were "forced to act quickly," for they "knew the video was about to be publicized on a local television station and reasonable officers could have feared that the video would cause more damage as its notoriety spread and more people saw it."

Let's put the supposed time pressure in the context of the facts of the case. Were the defendants truly "forced to act quickly"? Not at all - for several reasons:

First, the idea that further publicizing the film would have caused damage is far-fetched, because the premise of the film was absurd. Recall that the conceit of the film was that ‑‑ presumably due to Y2K-related hysteria ‑‑ the military was going to take over New York City on New Year's Eve 1999, with Times Square perhaps a key site of the takeover. I think the lion's share of viewers would immediately see that this was a satire or commentary ‑‑ not a nonfiction film.

Second, recall, also, that even the narrator of the video himself expressed serious questions as to whether the video was real ‑‑ further undermining the chance that any viewer would blindly take it as the gospel truth. Surely, the local TV coverage would also, at a minimum, have raised the "real or fake?" issue as the key focus of the story. In light of this fact, expecting that mass panic would have taken hold is about as plausible as the expectation that the "Blair Witch Project" would have caused a mass uprising against Wiccans.

Third, even assuming some viewers did somehow believe the video was real, the government could have easily taken action to correct that misimpression, by speaking out in its own defense, assuring the public that there was no such plan. After all, the government had plenty of time to do so before New Year's Eve: They'd learned of the video as early as October, and their coercive phone call to Wieger took place on November 15 - a month and a half in advance of the supposed takeover.

Fourth, if the government was truly concerned about avoiding this supposedly terrible damage, why did it take no action at all when, only 11 days after he'd taken the video down, Wieger allowed it to be re-posted? If this was such a major threat that urgent action was necessary, why wasn't careful follow-up necessary, too?

Fifth, misconstruing the law is a lot less defensible ‑‑ and less "reasonable" ‑‑ when one either is an attorney, or has the benefit of attorneys' advice.

From the beginning, the Second Circuit noted, FBI agent Metzinger had been informed by the U.S. Attorneys' office that "all he could do was make a request" to have the film removed. He obviously went much further than simply making a request when, for example, he sent police officers to Zieper's house. With an FBI agent and several uniformed police officers showing up at Zieper's front door, it's not a huge stretch to view this as a coercive scenario.

And what about federal prosecutor Korologos? Not only was she an attorney, she was supposed to be the cream of the crop ‑‑ working for one of the nation's premier U.S. Attorney's Offices in the Southern District of New York. Surely, she should have instantly spotted the obvious First Amendment issue here, and cautioned the FBI to carefully walk the convincing/coercing line.

Sixth, and finally, it is faulty logic, on the panel's part, to let government agents and prosecutors off the hook simply because the leading relevant Supreme Court precedent dealt with conduct much worse than their own. A case's logic can be directly relevant even if its facts are more extreme ‑‑ as judges ought to know. Moreover, attorneys, especially, ought to be able to see how key precedents can logically be applied.

A Bad Sign for Free Speech in the Time of the "War on Terror"

Perhaps the most worrisome aspect of this decision is that -- while the incidents at issue occurred in late 1999 - the Second Circuit panel issued its decision on January 19 of this year.

How did the fact that the conduct was pre-9/11, but the decision was post-9/11, affect the outcome? Of course, any answer is necessarily speculative. But it's not speculative to say that these judges (working not far from Ground Zero) must have been deeply affected by 9/11 and all that has come after.

Possibly, the post-9/11 atmosphere may have made the panel somewhat more lenient to police and prosecutors, who now hold greater and more momentous responsibility. But it's equally possible that the panel might have had civil liberties in mind, yet seen these incursions -- consisting of visits and phone calls -- as very minor compared to, say, post-9/11 detentions and torture.

If so, that was a mistake; when it comes to civil rights violations, we shouldn't be part of a "race to the bottom" when only the most damaging, cruel, and flagrantly illegal conduct is taken seriously.

Zieper and Wieger were "only" intimidated, but what happened to them still matters. When a court accepts the kind of paper-thin rationalizations for government action that were offered here, it puts in jeopardy the hope of preserving First Amendment rights in the era of the "war on terror."

The court's opinion thus not only erred in the way it resolved the case at hand, but also bodes ill for a future where both the coercion exerted in favor of censorship, and the rationales used to purport to justify it, are likely to be stronger than they were here.


Julie Hilden, a FindLaw columnist, graduated from Yale Law School in 1992. She practiced First Amendment law at the D.C. law firm of Williams & Connolly from 1996-99. Hilden is also a novelist. In reviewing Hilden's novel, 3, Kirkus Reviews praised Hilden's "rather uncanny abilities," and Counterpunch called it "a must read.... a work of art." Hilden's website, www.juliehilden.com, includes free MP3 and text downloads of the novel's first chapter.

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