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ZIEPER v. METZINGER

August 22, 2005.

MICHAEL ZIEPER and MARK WIEGER, Plaintiffs,
v.
JOSEPH METZINGER and LISA KOROLOGOS, Defendants.



The opinion of the court was delivered by: P. KEVIN CASTEL, District Judge

MEMORANDUM AND ORDER

New Year's Eve has long been celebrated by throngs of revelers in New York City's Times Square, and it was widely anticipated that the arrival of the year 2000 would at-tract greater than usual attention and participation. The New York City Police Department ("NYPD"), the Federal Bureau of Investigation ("FBI") and the Office of the United States Attorney for the Southern District of New York ("USAO-SDNY") coordinated anti-terrorism activities in advance of the December 31, 1999 celebration.

In October 1999, a video approximately six minutes in duration appeared on an Internet website. In the video, an unidentified and unseen male whose voice is heard appears to pan a camera across locations in or about Times Square, occasionally zooming in on specific spots. The male voice states: "This is where it all goes down." He describes what he says will be the setup of Times Square on New Years Eve, including the location of "containment pens and ? barricades" and "civilian authorities." He instructs "Alpha Team" to "keep throwing out your story to any of the Caucasians near-by. Hit them on that black thing . . . `Tonight we're gonna get some for ourselves' . . . Stir that shit up." He tells "Bravo Team" to have people "running for their lives" by midnight. He instructs "Raven" to "agitate it" by "giv[ing] them a little of that Amadou shit," by which time he predicts "[t]here's gonna be a lot of hot lead flying every which way, all around here. . . ." The voice describes how at midnight "[t]he lights go out and it's gonna be pretty fucking dramatic," and tells his "guys" to have a "withdrawal plan in your head" because "I don't want anybody left on the island when the troops start moving in. . . . Once they secure the perimeter, nothing and nobody is gonna get off this island." The voice concludes by telling his "teams" that "[t]he situation gets crazy enough, civilian authorities are gonna have no other choice but to call on our boys to fix it."

  The video raised security concerns regarding the upcoming Millennium celebrations in Times Square. Law enforcement personnel learned that the video was the creation of plaintiff Michael Zieper, a filmmaker who posted it on the crowdedtheater.com website. The website was hosted by BECamation, whose owner, plaintiff Mark Wieger, provided space for the website on a server and was responsible for the technical creation of the site. As discussed herein, after receiving instructions from other law enforcement personnel, defendant Joseph Metzinger, a Special Agent with the FBI, asked Zieper to remove the video from the Internet. Zieper refused. Metzinger and defendant Lisa Korologos, an Assistant United States Attorney in the Southern District of New York, then asked Wieger to remove the video. Wieger agreed, and blocked Internet access to the video for approximately ten days.

  Plaintiffs subsequently brought this action against defendants Metzinger, Korologos and others, alleging that they threatened or coerced plaintiffs into removing the video in violation of plaintiffs' rights under the First and Fifth Amendments. Plaintiffs bring their claim pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), seeking monetary relief from Metzinger and Korologos in their individual capacities.

  Defendants now move for summary judgment asserting that there is no genuine issue of material fact as to liability under the First Amendment and, alternatively, that defendants are entitled to summary judgment on qualified immunity grounds. For the reasons set forth below, defendants' motions for summary judgment on plaintiffs' First Amendment claims are denied, but are granted on the issue of qualified immunity. Plaintiffs' Fifth Amendment claims depend upon the viability of their First Amendment claims in this case and are dismissed on the ground of qualified immunity.

  I. PROCEDURAL HISTORY

  This lawsuit was commenced on or about December 22, 1999 in the District of New Jersey against then-United States Attorney General Janet Reno, then-Director of the FBI Louis Freeh, then-United States Attorney for the Southern District of New York Mary Jo White, Metzinger and Korologos.*fn1 Judge Dickinson R. Debevoise of the District of New Jersey granted a motion to dismiss as to all official capacity claims for declaratory and injunctive relief because plaintiffs had failed to allege an immediate threat of future harm. This left only the individual capacity claims against defendants Metzinger and Korologos, as to which Judge Debevoise found the plaintiffs had stated a claim. Zieper v. Reno, 111 F. Supp. 2d 484 (D.N.J. 2000). Judge Debevoise transferred the case to this District, where there was personal jurisdiction over the two individual defendants and which he concluded was a more convenient forum for the parties and witnesses. Id. at 492. In this District, the case was assigned to Judge Richard Berman. Defendants Metzinger and Korologos moved to dismiss the Complaint on the ground that a First Amendment claim was not stated, and on the doctrine of qualified immunity. In a decision and order dated June 26, 2002, Judge Berman ruled that plaintiffs adequately pleaded a claim for relief under the First Amendment and that "[d]iscovery is needed in this case to determine . . . whether Defendants' conduct was coercive and/or intimidating; whether Defendants' comments were legal advice or appropriate request(s) for help; and, whether it was reasonable for Plaintiffs to fear prosecution/government action as a result of noncompliance." Zieper v. Reno, 2002 WL 1380003, at *5 (S.D.N.Y. 2002). Judge Berman also ruled that the question of whether defendants were entitled to qualified immunity "requires an evaluation (discovery) of (several) issues of fact, including, among others: the nature of Defendants' communications to Plaintiffs, the circumstances surrounding Defendants' actions, including the impending millennium; whether such actions were an appropriate and/or proportional response to issues and concerns of public safety; and, the circumstances surrounding the airing of the film." Id. at *8. Defendants Metzinger and Korologos appealed to the Second Circuit arguing that the district court erred in not granting their motion to dismiss. In an unpublished summary order, the Court "conclude[d] that the complaint does allege a constitutional claim. . . ." Zieper v. Metzinger, 62 Fed. Appx. 383, 386 (2d Cir. 2003). It also ruled that it did not have jurisdiction to review the district court's conclusion that "discovery is necessary in order to resolve factual issues related to defendants' qualified immunity defense. . . ." Id.

  The case was reassigned to me and discovery ensued. On April 28, 2004, I set a fact discovery closure date of September 10, 2004. Thereafter, at the joint request of the parties, I extended the date to September 23. On September 24, I set a schedule on the now pending summary judgment motions. I heard oral argument on the fully briefed summary judgment motions on July 21, 2005.

  II. THE FACTUAL RECORD ON THE SUMMARY JUDGMENT MOTIONS

  As the summary judgment movants, each defendant submitted a Statement of Undisputed Facts pursuant to Local Rule 56.1. The plaintiffs responded to those statements. In many material respects, the facts are undisputed. In instances where plaintiffs have disputed a stated fact, I accept only their version of events. Where multiple inferences could be drawn from the same facts, in each case I draw the inference most favorable to the plaintiffs.

  A. The Video

  Zieper's video includes no actors or action, but rather consists simply of the narrator and what appears to be daytime street footage at various locations in Times Square. As described by plaintiffs, "[t]he plan [depicted in the film] included the use of violence, including a staged sexual assault." (Pls. Metzinger 56.1 Resp. ¶ 4)

  Zieper, who titled his video "Military Takeover of New York City," states that he intended the work to comment on "the paranoia that was gripping this country surrounding the end of the Millennium, and how racial hatred is used to manipulate people." (Pls. Metzinger 56.1 Resp. Add'l Facts ¶ 6) He produced the video in an intentionally ambiguous and amateurish fashion in order to convey a sense of realism. (Zieper Decl. ¶ 6; Zieper Dep. at 57-58; Complaint ¶¶ 15-16) The video "purports to depict real events" and "purposefully avoids the use of framing devices employed in conventional films that signal to the viewer that the events are fictional." (Pls. Metzinger 56.1 Resp. ¶ 3; Complaint ¶¶ 15-16) Zieper's name did not appear anywhere on the website or the film, neither of which indicated who created the tape or whether it purported to be a work of fiction. According to Zieper, this was intentional and is typical of his films, which "frequently do not include credits or titles or other markers that would indicate they are fiction . . . in order to provoke additional thought on behalf of the viewer" "in the tradition of War of the Worlds." (Zieper Declaration ¶ 6) Zieper "followed this tradition in the `Military Takeover' film," and made it available on the Internet "so that it could be viewed by millions of people." (Id. ¶¶ 6 & 7) He "called the web site `crowdedtheater.com' and chose as [his] contact email address `fire@crowdedtheater.com' to invoke Justice Holmes' famous comment in Schenck v. U.S., 249 U.S. 47 (1919)." (Id. ¶ 8) In addition to posting the film on his website, Zieper also posted information about the film on Internet newsgroups to call people's attention to it. (Id. ¶ 7) In one of those postings, Zieper (using his internet address) wrote "My cousin gave me this tape. The tape looks like it could be real. I put it on my website. see [sic] what you think." (Fine Decl. Exh. X)

  Zieper's video was accompanied by a statement on the website's home page that read:
Is there going to be a Military Takeover of New York City on New Years Eve 1999? I don't know too much about this tape you are about to see. I got it from my cousin Steve who's in the army. He said that copies of this tape are floating around the base, and nobody knows who made it. If it's fake, then there's nothing to worry about. If it's real, then we're in really big trouble. (Complaint ¶ 19)
According to Zieper, this statement was intended to foster ambiguity about the tape and its origin. (Pls. Metzinger 56.1 Resp. ¶ 9; Zieper Dep. at 57-58)

  B. Defendants' Contact with Zieper

  In early November 1999, Zieper's film came to the attention of the NYPD, FBI and USAO-SDNY. After viewing the tape, the then-co-chief of the USAO-SDNY's Organized Crime and Terrorism Unit, Patrick Fitzgerald, advised the FBI Assistant Special Agent in Charge of the Counterterrorism Branch of the FBI's New York office, Pasquale D'Amuro, that although the government could not order anyone to remove the film from the Internet, the government could ask or request that the tape be removed. D'Amuro, in turn, informed defendant Special Agent Metzinger or his supervisor that they could request that the film be taken off the Internet. (Pls. Metzinger 56.1 Resp. ¶¶ 10-16)

  On November 10, Defendant Metzinger, along with two NYPD detectives, including Detective Daniel Calemine, and a local police officer, went to Zieper's New Jersey home to speak with him. Zieper was not at home. Metzinger asked the local police officer to call Zieper at a pager number. When Zieper returned the page, the police officer told him that he was at his doorstep with two FBI agents, who wanted to speak with him. Zieper informed him that he would not be returning that evening, and the call ended. Metzinger then paged Zieper, and when Zieper returned the call, Metzinger told him that he was a special agent with the FBI and was at Zieper's home with Detective Calemine, and that they were trying to find out about the video. According to Zieper, Metzinger told him to "imagine the consternation the film was causing New York," expressed his displeasure with the site, "and said the film might `upset' all the people coming to New York and that it would have a `negative impact on people's plans and the business interest.'" (Pls. Metzinger 56.1 Resp. Add'l Facts ¶¶ 18-24)

  Metzinger asked Zieper where he had obtained the video. (Id.) Zieper told Metzinger that he would speak to him the following day, and Metzinger agreed, asking if "in the meantime there was any way the FBI could get people to stop seeing the video on the Internet." (Complaint ¶ 26; Pls. Metzinger 56.1 Resp. Add'l Facts ¶ 26) According to Zieper, Metzinger "asked me to help him come up with a way to prevent people from seeing my website." (Zieper Dep. at 46) When, according to Zieper, Metzinger asked him if he could call a local TV station that was scheduled to feature a portion of the video and ask them not to run the story, Zieper responded "at that time [I] couldn't make that call, but perhaps he would want to." (Zieper Dep. at 170; Pls. Metzinger 56.1 Resp. Add'l Facts ¶ 28) Neither Metzinger nor Zieper asked the local TV station to refrain from broadcasting a portion of the video. Zieper testified that during the November 10 phone calls, "no one told me I had to do something" or would be prosecuted if he did not do something, Metzinger was "polite," and the tone of the conversation was not threatening. (Zieper Dep. at 11, 45-46; Pls. Metzinger 56.1 Resp. ¶¶ 24 & 27)

  Although Metzinger left a message for Zieper the next day asking him to call, Zieper did not return the call, and never spoke to Metzinger again. Instead, lawyers for Zieper called Metzinger, informed him that the video was a work of fiction, and asked that all contact with Zieper be through his lawyers. One of Zieper's lawyers, Scott Thompson, said to Metzinger "I hope we cleared this up for you. . . . [and] if there's any further action you need that needs to be taken, . . . go through us, but I hope it's over." (Thompson Dep. at 31) According to Thompson, Metzinger responded with "words to th[e] effect" that "this isn't over." (Id.) Thompson also testified that although he hoped that the FBI would end its investigation after speaking to him, it "would be contrary to my 20 years of experience with the FBI" if Metzinger had simply said "`the lawyer said there's no problem so I'm just going to walk away.'" (Id. at 31-33) During the phone call with Thompson, Metzinger also informed him that FBI agents were on their way to Zieper's house and could not be stopped. (Skolnick Dep. at 31; Pls. Metzinger 56.1 Resp. ¶¶ 33-35) It is undisputed, however, that Metzinger in fact told the agents not to contact Zieper again and neither Metzinger nor the FBI had any further contact with Zieper or his lawyers. (Pls. Metzinger 56.1 Resp. ¶¶ 33-35) Zieper did not remove the video from his website. (Pls. Metzinger 56.1 Resp. ¶ 34; Zieper Dep. at 173) It also is undisputed that defendant Korologos had no contact with Zieper. (Zieper Dep. at 11)

  C. Defendants' Contact with Wieger

  On November 12, Metzinger and Detective Calemine brought a copy of the video to the United State Attorney's Office for the Southern District of New York and met with AUSA Korologos and AUSA Michael Garcia, who was then the Acting Chief of the USAO-SDNY's Organized Crime and Terrorism Unit. (Pls. Metzinger 56.1 Resp. ¶¶ 37-38) Then-U.S. Attorney Mary Jo White also participated in discussions about the tape, having first heard about the tape from Fitzgerald. (White Dep. at 3) Garcia informed White that they were planning to contact the website host of the video "to request that while they continued to investigate, that the tape not be shown." (Id. at 4-5; see also Pls. Korologos 56.1 Resp. ¶ 13) After viewing the tape, White informed Garcia that "this should be a request and that the [FBI] should do it as part of what I call, its good corporate citizenship program, where they, in various contexts, request of citizens to do various things." (Id. at 5; Pls. Korologos ...


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