Case nameZieper v. Metzinger 
Citation: 474 F.3d 60 (2nd Cir. 2007) 
TopicsOnline Contracts

In the autumn of 1999, Michael Zieper posted a short film to web space that he rented from a company owned by Mark Wieger. The film featured shots of Times Square, along with a voice-over from someone purporting to be a military officer who is briefing officers about a supposed takeover of Times Square on New Year’s Eve 1999. The film’s introduction claimed that the film’s origin or legitimacy was unknown. However, most people who saw the film concluded that it was a work of fiction. Even so, the New York Police Department notified the FBI’s Joint Terrorism Task Force. After reviewing the film, FBI authorities concluded that the film was, indeed, a work of fiction and that they could not order its removal. That left them with the option of asking Zieper to remove it from the website.

An FBI agent repeatedly asked Zieper to remove the short film from the website. However, the filmmaker refused to take it down. The FBI agent then employed the aid of an Assistant United States Attorney. Together, they called Mark Wieger, the owner of the company hosting Zieper’s web space, and pressured Wieger to remove the film from the website himself. He did.

Zieper filed suit against the federal government in 2000. However, the case never proceeded, because he did not have standing. He brought the suit again, this time suing the particular agent and Assistant U.S. Attorney involved. In 2005, the district court granted summary judgment in favor of the government officials due to qualified immunity – a doctrine which protects government officials from lawsuits unless their actions violate clearly-established rights of which a reasonable official would have known.

Zieper appealed to the Second Circuit Court of Appeals, which upheld the district court’s decision. The court acknowledged that the government officials did, in fact, violate Zieper’s First Amendment rights. However, they concluded that the government officials were protected by qualified immunity. To establish qualified immunity, the court had to decide whether or not the FBI agent and assistant attorney knew that their actions were not merely convincing, but coercive. The court concluded that while the actions themselves were, indeed, coercive the agent and assistant attorney had reason to believe that their actions were “convincing” and not “coercive.” As a result, the court granted them qualified immunity.

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