NY court: FBI might have violated First Amendment in efforts to take down conspiracy film

AP

NEW YORK – An effort by the FBI and federal prosecutors to remove a short fictional film about a military takeover of New York City from the Internet may have violated the First Amendment, a federal appeals court said Friday.
But the 2nd U.S. Circuit Court of Appeals in Manhattan said a lower court was still correct to toss out a lawsuit brought against an FBI agent and a federal prosecutor by a web hosting service operator and Michael Zieper, who wrote, directed and produced the film. The appeals court said in a written opinion that the FBI agent, Joseph Metzinger, and the assistant U.S. attorney, Lisa Korologos, were immune from the lawsuit because it would not have been clear to a reasonable officer in their position that they were doing anything wrong.
Metzinger and Korologos got involved Nov. 8, 1999, when the New York Police Department faxed information to the FBI's Joint Terrorism Task Force about the film, “Military Takeover of New York City.”

The film includes various shots of Times Square as an unseen narrator who purports to be a military officer briefs other members of the military about plans for a military takeover of Times Square on New Year's Eve 1999.

The appeals court said Metzinger and Korologos were free to ask filmmaker Zieper and Web site operator Mark Wieger to take the film down – but Metzinger went too far when he said that FBI agents were heading to Zieper's home and he could not stop them.

“A reasonable juror could conclude that some of the defendants' actions here did cross the sometimes fine line between an attempt to convince and an attempt to coerce,” the appeals court wrote.

While Metzinger spoke in a polite and non-threatening tone, and did not refer to criminal statutes or legal consequences, he never made it clear that Zieper's actions were lawful or that he would not face consequences for making the video public, the court said. It cautioned public officials “to make sure that the totality of their actions do not convey a threat even when their words do not.”

Metzinger told Wieger he was worried the film could incite a riot. Wieger blocked web access to the film beginning Nov. 15, 1999, but restored it 11 days later.

Yusill Scribner, a spokeswoman for federal prosecutors in New York, said the government had no comment.

Aden Fine, an American Civil Liberties Union lawyer who represented the plaintiffs, said the decision shows that even if “government officials government officials use a polite tone and don't directly issue threats, they can violate an individual's First Amendment rights.”