Intellectual Property Law

The Qualifying Immunity Doctrine in Internet Video Enforcement Cases

By IBLS Editor

Internet videos are a new form of expression used by all sectors of society including, government officials, corporations, and individuals.  In the United States (U.S.), Internet videos from individuals, thought, are becoming a challenge for enforcement authorities trying to balance public safety vs. constitutional freedoms.   The U.S. Constitutions guarantees freedom of speech, which extends to Internet communications. Yet, some Internet videos may cross the line of protected speech and become public nuisance to which law enforcement authorities react. These reactions may subject officers to suits for damages. This article presents an example of how the qualifying immunity doctrine has been used by law enforcement authorities to shield from damages allegedly caused by their intercepting or prohibiting controversial Internet videos. 

Federal agents use the "Qualifying Immunity Doctrine" (QID) to shield from suits for damages allegedly caused by their law enforcement activities; this is not a defense to liability but immunity.  A valid claim under the QID requires that the agent's "conduct does not violate clearly established constitutional or statutory rights of which a reasonable person should have known."   Courts, under the facts of each case, may require different elements to uphold this immunity.  For instance, under New York's courts, "to determine whether qualified immunity is appropriate, a court must first determine whether the facts alleged, taken most favorably to plaintiffs, demonstrate a violation of a constitutional right. Next, a court must determine whether the defendants' actions violated clearly established constitutional rights of which a reasonable person would have known. This determination must be undertaken in light of the specific context of the case, not as a broad general proposition."  FBI agents are currently patrolling the Internet, including sites posting Internet videos.  FBI agents, for public reasons, may prohibit certain forms of Internet speech, just as they do with some offline speeches.  The way the FBI agent transmits this prohibition is extremely important when asserting the QID, and in determining whether the officer "attempted to convince" or "attempted to coerce" the individual posting the Internet video. Following, there is an example of a successful assertion of the QID.

In 1999, an individual video producer posted an Internet video about a military takeover of New York City. The video depicted a military takeover of NYC on New Year's evening by a narrator who claimed to have gotten the information from "Steve," his cousin from the army.  The Internet video producer publicized its video in many Internet sites without any indication that the video was fictional.  The FBI considered the Internet video an attempt to public safety and a possible cause for riots.  They requested the video producer to take the video off the Internet but the producer refused.  The Internet video was blocked by the hosting company where the video was shown and as per the FBI's request.  The video producer filed a lawsuit for damages against the FBI agents that requested him to remove the video from the Internet.  The District Court ruled for the FBI agents and held that the QID applied to this case.  The Court of Appeals affirmed. 

The Court of Appeals held that the purpose of the qualifying immunity is to protect government agents when their jobs require them to make quick decisions.  Thus, under these circumstances, officers may reasonably believe that their actions are lawful.  In this case, the Internet video was going to be aired in a local news station that night and the FBI promptly moved to stop it.   

Full post as published by IBLS Internet Law Blog on October 20, 2008 (boomark / email).