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A federal judge has ruled that the actions of an FBI agent and a federal attorney may have violated the First Amendment rights of a New Jersey filmmaker and the Web site owner that hosted his video, a purportedly authentic outline for an attack on Times Square set for New Year’s Eve 1999. The judge nonetheless dismissed the case on the ground of qualified immunity. At issue in Zieper v. Metzinger, 00 Civ. 5594, was whether the government’s requests for the plaintiffs to remove from a Web site a video that showed a man planning a “military takeover” implied potential punishment or regulatory action. The “question is whether reasonable law enforcement officials in defendants’ positions could disagree as to whether [they] would have known that [their] actions violated” the plaintiffs’ First Amendment rights, wrote Southern District Judge P. Kevin Castel. He answered in the affirmative, and granted the government’s motion for summary judgment, dismissing the case. The video at issue first appeared in October 1999 — and can still be seen — on crowdedtheater.com. It shows a man canvassing Times Square, purportedly in preparation for a military takeover on the upcoming New Year’s Eve, a night for which New York City was already bracing for violence. The tape, shot from a hand-held camera, appears to be part of a U.S. military plan to instigate a riot by inciting racial unrest and faking an attempted rape. In the six-minute piece, a camera pans across Times Square while an off-screen narrator instructs various team members how to proceed on the night of Dec. 31, 1999. He tells the Bravo Team to have people “running for their lives” by midnight. When “the lights go out … it’s gonna be pretty fucking dramatic,” he adds. Have a “withdrawal plan in your head,” he says, because “I don’t want anybody left on the island when the troops start moving in.” The site that hosted the video prefaced it with a note: “Is there going to be a Military Takeover of New York City on New Year’s 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.” Actually, the site’s owner, Mark Wieger, knew exactly who made it: filmmaker Michael Zieper of West Caldwell, N.J. Soon after it was posted, law enforcement agents came across the video and on Nov. 10, 1999, Special Agent Joseph Metzinger called Zieper. The agent asked among other things if Zieper could take the video off the Internet. Zieper said he would call Metzinger back the following day, which he failed to do. They never spoke again, though Metzinger did speak with Zieper’s attorneys. Two days later, Metzinger brought a copy of the tape to the Southern District U.S. Attorney’s Office and on Nov. 15, 1999, Metzinger, Assistant U.S. Attorney Lisa Korologos and the Web site’s owner, Wieger, spoke via phone. Korologos allegedly asked Wieger if he was capable of blocking access to the site and, while the three were still on the phone, Wieger set up the block. Five weeks later, Zieper and Wieger initiated the present action against Metzinger and Korologos — as well as a number of other defendants who have since been dropped — alleging a violation of their free speech rights. PROTECTION MERITED In analyzing the claim, Judge Castel first noted that the plaintiffs’ speech merited First Amendment protection. “The video can be seen as provoking thought,” he wrote. “It is Zieper’s artistic expression and social commentary, and as such, is protected speech.” A First Amendment violation occurs when an “official’s actions ‘can reasonably be interpreted as intimating that some form of punishment or adverse regulatory action will follow the failure to accede to the official’s request’ to cease engaging in protected speech,” Castel added, quoting Rattner v. Netburn, 930 F2d 204. He ruled that two remarks made by Metzinger to Wieger could be found coercive by a reasonable jury: his statement that the government wanted the video blocked because it might “incit[e] a riot” and his comment, “We’ve contacted your upstream provider, GTE. And if you don’t pull the site down, they will.” However, Castel dismissed the claim on the basis of qualified immunity. “I conclude that a reasonable officer standing in the shoes of Metzinger and Korologos could believe that he or she was complying with the instructions of their supervisors and the law, and not threatening or coercing Wieger,” he wrote. Christopher A. Hansen and Aden Fine of the American Civil Liberties Union represented the plaintiffs. Aden called the decision a mixed victory. “The important part of the decision is that the judge reaffirmed the central legal principle that is at issue here, which is that informal action by the government violates the First Amendment just as much as formal government action can,” Aden said. He added that no decision has been made regarding a potential appeal. Assistant U.S. Attorney Sara L. Shudofsky, who represented the defendants, declined to comment.

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