United States Court of Appeals For the First Circuit

No. 23-1513

SCOTT D. PITTA,

Plaintiff, Appellant,

v.

DINA MEDEIROS, individually and in her official capacity as Administrator of Special Education for the Bridgewater Raynham Regional School District; BRIDGEWATER RAYNHAM REGIONAL SCHOOL DISTRICT,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. F. Dennis Saylor, IV, U.S. District Judge]

Before

Gelpí, Selya, and Lynch, Circuit Judges.

Scott D. Pitta, pro se, for appellant. Peter L. Mello, with whom Murphy, Hesse, Toomey & Lehane, LLP, was on brief, for appellees.

January 4, 2024 LYNCH, Circuit Judge. Scott D. Pitta, the attorney

father of a public school student, appeals from the decision of

the Massachusetts U.S. District Court granting the motion to

dismiss his First Amendment claim against Bridgewater-Raynham

Regional School District ("the District") and Dina Medeiros, the

District's Administrator for Special Education. Pitta v.

Medeiros, No. 22-11641,

(D. Mass. May 19, 2023).

After the District denied his request to video record a

private meeting with school district employees to discuss the

Individualized Educational Program ("IEP") of his child, Pitta

brought suit under

, alleging that he had a

constitutional First Amendment right, which the appellees had

denied, to video record what was said by each individual at his

child's IEP Meeting. The district court held that Pitta, on the

facts alleged, did not possess such a First Amendment right, id.

at *8, and that is the only issue on appeal. To be clear, Pitta

does not allege that he had a right to record an IEP Team Meeting

under any federal or state statute or regulation. We affirm the

district court's dismissal of Pitta's First Amendment claim.

I.

We first detail the allegations in Pitta's complaint and

events in his further filings, on which he relies. Pitta is a

resident of Bridgewater, Massachusetts. His child attends public

school in the District and, at the time of the events pled,

- 2 - received IEP services. Appellees are the District, a Massachusetts

school district organized under Massachusetts General Laws ch. 71,

§ 14B, and Medeiros in her official capacity as the District's

Administrator of Special Education. Pitta originally sued

Medeiros in her individual capacity as well, but this claim was

dropped on appeal.

On February 15, 2022, and March 8, 2022, during the

COVID-19 pandemic, Pitta and pertinent District employees engaged

in two meetings ("IEP Team Meetings") virtually to "discuss and

develop a new IEP for [Pitta's] child." During these meetings,

although the appellees had previously "argu[ed] to remove

[Pitta's] child from IEP based special education services,"

"several school district employees" admitted "that the [District

and Medeiros] had no data upon which to base their opinion" that

his child should be removed from these services, and "that teachers

who performed evaluations on the child that resulted in findings

contrary to the [appellees'] position were later asked by the

[appellees] to 'double check' their evaluation, but teachers whose

evaluation results supported the [appellees'] position were not

asked to do the same." The complaint alleges that "[d]espite

lengthy discussions" of these statements, these statements "were

not included in the [appellees'] official meeting minutes that

were emailed to [him] on March 10[], 2022." When Pitta alerted

appellees to these "omissions and inaccuracies," he "objected to

- 3 - the [appellees'] minutes as an official record of the meetings and

requested that the minutes be amended to include the omitted

portions," but appellees "refused to amend the meeting minutes."

Months later, on September 20, 2022, Pitta attended

another IEP Team Meeting, conducted virtually through "Google

Meet," to discuss his child's IEP. Pitta requested that the

appellees video record the meeting using the Google Meet record

function. 1 He did so, he alleges, because of appellees' previous

"failure to produce accurate minutes of prior meetings and refusal

to correct those errors despite obligations to maintain accurate

records under

.03." Appellees refused his request to

make such a video recording, stating that such a recording would

be "invasive" and was not permitted by District policy. Appellees

did offer to audio record the meeting instead. Pitta then told

Medeiros, the IEP Team Meeting chair, that since the District's

policy prohibited them from video recording the meeting, he would

make his own recording. Once the meeting began, the appellees

announced that they were audio recording the meeting, and Pitta

stated that he was video recording it. At that point, Medeiros

stated that if Pitta did not stop his video recording, she would

1Both Pitta's complaint and the appellees' brief state that Pitta "requested that the Defendants[] video record the meeting using the Google Meet record function." As the district court noted, Pitta did not specify which District employees, other than Medeiros, attended the IEP Team Meeting. Pitta,

, at *7.

- 4 - end the meeting. When Pitta refused to stop the video recording,

Medeiros terminated this meeting. Pitta filed this suit on

September 28, 2022, within days of the failed meeting, seeking

declaratory and injunctive relief.

On October 3, 2022, after Pitta had filed this suit,

Medeiros emailed Pitta that the District had "figured out a way to

accommodate [his] request to know who is speaking while the meeting

is being audio recorded" and was attempting to find a mutually

agreeable time "for the educational Team to reconvene from the

attempted [IEP] Team [M]eeting scheduled on 9/20/22."2 She

proposed that "[t]eam members will all be audio recorded and

participate with the camera off. When speaking, their identity

box will be indic[a]ted as the person speaking by lighting

around/within the box." She wrote that this would allow Pitta to

"be able to tell who is speaking" while "looking at the screen."

Pitta agreed to a virtual IEP Team Meeting under these conditions

to take place on October 21, 2022. 3

2 On a motion to dismiss, we may consider documents which are of undisputed authenticity, official public records, central to the plaintiff's claim, or sufficiently referred to in the complaint. Watterson v. Page,

(1st Cir. 1993). We will consider the e-mails attached to appellees' memorandum to the district court as documents of undisputed authenticity.

3 The record does not reflect whether this meeting took place. At oral argument, Pitta stated that after the district court granted the appellees' motion to dismiss in this case, the District rescinded its offer to allow this kind of recording and

- 5 - After filing this suit, Pitta sent a public records

request on July 10, 2023, seeking from the District "[a]ll special

education policies, procedures, etc[.] regarding the IEP process

in effect from January 1, 2022[,] to the date of th[at] request";

"[a]ll emails to or from Paul Tsovolos or Dina Medeiros regarding

the same information"; and "[a]ll changes or proposed changes to

policies, procedures, etc[.] requested." On July 24, 2023, the

District provided Pitta with a copy of the Bridgewater-Raynham

Regional School District Special Education Policy and Procedure

Manual ("Manual").4

The Manual explains in detail the District's

requirements and policies regarding IEPs, the composition of IEP

Teams, and the conduct of IEP Team Meetings. It lists the specific

individuals who comprise an IEP Team as: "the student's parent(s);

at least one regular education teacher familiar with the student;

at least one special education teacher familiar with the student;

a representative of the district who has the authority to commit

has since restricted both audio and video recording of IEP Team Meetings.

4 Pitta filed a Supplemental Appendix with his reply brief containing the Manual, as well as a June 4, 2003, letter written by Stephanie S. Lee, then-Director of the Office of Special Education Programs at the Department of Education ("DOE"). We take judicial notice of the official documents contained in the Supplemental Appendix, the appellees not having contested their authenticity.

- 6 - resources5; an individual who can interpret evaluation results;

other individual(s) who have knowledge or expertise regarding the

student; [and] if appropriate, the child."

The Manual states that "[t]he [IEP] Team is charged with

managing three important activities: Eligibility Determination/

Initial and Reevaluation[;] Development of the IEP[; and]

Placement Decision." (Emphasis omitted.) "After finding a student

eligible for special education services, the Team develops the

IEP." "The IEP must be tailored to the individual student['s]

needs as determined through the evaluation process." It explains

that "[d]uring an IEP Meeting, Team members share information and

discuss the needs of the student in order to gain a comprehensive

understanding of the student." IEP development is a "student

driven, individualized process," and "[a] well-managed Team

meeting" solicits and considers highly personalized information

about the student for whom the IEP is being developed, including

"parent/student input," "the student's future dreams and goals,"

"how the student's disability affects the student's learning," and

"how the student performs today," as well as "the areas that are

affected by the disability" and the "supports and services the

student needs for success." Team members must also review "the

5 The Manual instructs that "[t]he Director of Student Services, Administrator of Special Education, Special Education Coordinator, Principals and Chairpersons/Department Head have the authority to commit District resources."

- 7 - student's strengths, interests, personal attributes, and personal

accomplishments as well as key evaluation results," among other

behaviors and personal characteristics of the student.

The Manual states that "[Massachusetts] regulations and

[the District] require[] attendance at the Team Meeting of the

following staff members: (1) Regular Education Teacher[;] (2)

Special Education Teacher[;] (3) A representative of the district

who is able to commit the resources of the district[; and] (4) An

individual who can interpret the instructional implications of

[the] evaluation results, who may be a member described above."

In addition, "[t]he Administrator or Coordinator of Special

Education is available to attend any meeting where the Team feels

it will be discussing resources beyond those which are readily

available in their school building." The Manual permits

"[a]lternatives to 'physical meetings'" for IEP Team Meetings,

"including video conferencing, telephone conferencing, or virtual

meetings."

The Manual does not address the topic of video recording

these meetings. It does specify, however, how IEP Team Meetings

should be documented. The Manual describes the use of an "N1

letter" as "a tool used to formally document the proposed action

and justification for that action that a school district will take

following a Team meeting." "The N1 letter is the district account

and perspective on the proceedings and should outline all perceived

- 8 - viewpoints and responses resulting from the Team discussion,"

including "a clear student-centered recommendation that allows for

the student to receive a Free and Appropriate Public Education,"

"documentation of the consideration of any rejected factors by the

Team," "all district based information (staff input, observation,

evaluation)" and "all information obtained from parents or non-

district members of the Team (parent observation, outside

evaluations, outside service provider input, discharge summary)."

The Manual also requires that the IEP Team Members "[u]se the Team

Meeting Notes Form to document pertinent information summarizing

the [IEP Team] meeting and action plan." It states that "[a]ny

formal meeting among Team members, including parents, should

result in either: a completed IEP or the Team Meeting Notes/Summary

form in lieu of the completed IEP (if changes are made to the

IEP)."

II.

On October 20, 2022, Medeiros and the District moved to

dismiss the complaint under Federal Rule of Civil Procedure

12(b)(6) for failure to state a claim upon which relief can be

granted. After briefing and argument, the district court issued

its Memorandum and Order granting the defendants' motion to dismiss

on May 19, 2023. See Pitta,

, at *8. It held that

the complaint failed to state a claim under the First Amendment

because First Amendment protections for "filming government

- 9 - officials engaged in their duties in a public place," as recognized

by the First Circuit in Glik v. Cunniffe,

(1st Cir.

2011), did not extend to video recording an IEP Team Meeting.

at *6 (quoting Glik,

). It reasoned that the meeting

did not occur in a "public space," its attendees were not included

under the definition of "public officials" as the term was used in

Glik and a related case, Iacobucci v. Boulter,

(1st

Cir. 1999), and it was unclear whether a right to record public

officials existed without a corresponding intent to disseminate

the recording, which it found Pitta did not allege. See Pitta,

, at *7-8. 6

6 The district court's other rulings are not at issue in this appeal. In addition to their motion to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(6), appellees also moved to dismiss it under Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction due to mootness and failure to exhaust administrative remedies under the Individuals with Disabilities Education Act ("IDEA"),

. Pitta,

, at *3-6. In addition, Medeiros moved to dismiss the complaint against her in her individual capacity for insufficient service of process under Fed. R. Civ. P. 12(b)(4)(e). Id. at *8. The district court declined to dismiss the complaint for lack of subject matter jurisdiction under Rule 12(b)(1), holding first that the complaint presented a live case or controversy and second that Pitta's claim was not subject to the exhaustion requirement under the IDEA. Id. at *3-6. The court also dismissed Pitta's Fourteenth Amendment claim for failure to state a claim under Rule 12(b)(6) because the complaint did not provide detail beyond mere allegations that his due process rights had been infringed or that he had been denied equal protection of the laws. Id. at *8. Finally, the court dismissed the individual-capacity claim against Medeiros under Rule 12(b)(4)(e) for failure to effect proper service. Id.

- 10 - Pitta timely appealed.

III.

We review de novo a district court's grant of a motion

to dismiss for failure to state a claim under Rule 12(b)(6). Lyman

v. Baker,

(1st Cir. 2020). "[I]n First Amendment

cases, appellate courts have 'an obligation to make an independent

examination of the whole record' in order to make sure that 'the

judgment does not constitute a forbidden intrusion on the field of

free expression.'" Cheng v. Neumann,

(1st Cir.

2022) (quoting Bose Corp. v. Consumers Union of U.S., Inc.,

(1984)).

We accept the complaint's well-pleaded factual

allegations as true and draw all reasonable inferences in favor of

the non-movant.

(citing McKee v. Cosby,

(1st

Cir. 2017)). "We do not credit legal labels or conclusory

statements, but rather focus on the complaint's non-conclusory,

non-speculative factual allegations and ask whether they plausibly

narrate a claim for relief."

To survive a motion to dismiss, the complaint must "state

a claim to relief that is plausible on its face," Bell Atl. Corp.

v. Twombly,

(2007), that is, its "[f]actual

allegations must be enough to raise a right to relief above the

speculative level, . . . on the assumption that all the allegations

in the complaint are true (even if doubtful in fact),"

.

- 11 - While the plausibility standard is not a "'probability

requirement,' . . . it does require 'more than a sheer possibility

that a defendant has acted unlawfully.'" Air Sunshine, Inc. v.

Carl,

(1st Cir. 2011) (quoting Ashcroft v. Iqbal,

(2009)). "Determining whether a complaint states

a plausible claim for relief" is "a context-specific task that

requires the reviewing court to draw on its judicial experience

and common sense." Iqbal,

. If the complaint fails

to include "factual allegations, either direct or inferential,

respecting each material element necessary to sustain recovery

under some actionable legal theory," it should be dismissed.

Gagliardi v. Sullivan,

(1st Cir. 2008) (quoting

Centro Médico del Turabo, Inc. v. Feliciano de Melecio,

(1st Cir. 2005)).

IV.

"The First Amendment, which applies to the States

through the Fourteenth," Mills v. Alabama,

(1966), provides that "Congress shall make no law . . . abridging

the freedom of speech," U.S. Const. amend. I. In order to

determine whether Pitta's First Amendment rights were violated, we

first address whether video recording one's child's IEP Team

Meeting is protected by this amendment. See Cornelius v. NAACP

Legal Def. & Educ. Fund, Inc.,

(1985); see also

- 12 - Project Veritas Action Fund v. Rollins,

(1st

Cir. 2020). We conclude it is not.

In Glik v. Cunniffe, this court held that an onlooker

possessed a constitutionally protected right under the First

Amendment to video tape police officers as they performed an arrest

in the Boston Common.

. As the appellant in

that case was walking through the Common, he caught sight of three

police officers arresting a young man.

. "Concerned

that the officers were employing excessive force to effect the

arrest, Glik stopped roughly ten feet away and began recording

video footage of the arrest on his cell phone."

.

This court found that First Amendment protections "encompass[] a

range of conduct related to the gathering and dissemination of

information," and that "[t]he filming of government officials

engaged in their duties in a public place, including police

officers performing their responsibilities, fits comfortably

within" this range.7

.

7 In making its determination, the Glik court commented that "we have previously recognized that the videotaping of public officials is an exercise of First Amendment liberties," citing Iacobucci, 193 F.3d. But Iacobucci did not raise a First Amendment claim. Rather, the case involved a

claim for false arrest brought by a local journalist who was arrested while attempting to film commissioners of the Town of Pembroke's Historic District Commission in the Pembroke Town Hall after a public meeting of the Commission. Iacobucci,

. Iacobucci attended the Commission meeting to videotape it for "a weekly news program that he produced and broadcast via a cable television outlet."

. He refused to stop recording

- 13 - This court also recognized on the facts therein a First

Amendment right to video and audio record police officers in

Gericke v. Begin,

(1st Cir. 2014), and in Project

Veritas, 982 F.3d. Gericke held that an individual has a right to

record police officers "carrying out their duties in public" while

conducting a traffic stop on the side of the road.

-

4, 7 (quoting Glik,

). Gericke was driving on the

highway in Weare, New Hampshire, at approximately 11:30 pm when a

police officer stopped her friend's car, which she had been

following. Id. at 3. Gericke pointed a video camera at the police

officer and announced that she was going to audio-video record the

officer while he interacted with her friend, who had exited his

vehicle. Id. When the police officer ordered Gericke to return

the meeting despite repeated requests by the commissioners and by police officers eventually called to the scene. Id. at 17-18. After the meeting ended, Iacobucci noticed that the commissioners were speaking with a man in the Town Hall corridor and began filming their conversation "on the assumption that he was witnessing a de facto resumption of the adjourned meeting." Id. at 18. Although the commissioners again asked him to stop filming, Iacobucci persisted. Id. Eventually a police sergeant stepped in front of his camera lens and demanded he cease and desist, but Iacobucci continued video recording, even after he was given the ultimatum of "sit down or be arrested," until the sergeant took his camera and placed him under arrest. Id. The criminal charges were eventually dismissed, but Iacobucci filed a pro se civil action which included the false arrest claim against the sergeant. Id. The opinion stated in dicta that because Iacobucci's "activities were peaceful, not performed in derogation of any law, and done in the exercise of his First Amendment rights, [the defendant police sergeant] lacked the authority to stop them." Id. at 25 (emphasis added).

- 14 - to her car, she immediately complied, though she continued to point

her camera at the officer despite knowing it was not recording.8

Id. This court held that the "constitutionally protected right to

film police . . . discussed in Glik" applied to Gericke's case as

well, because "[i]n both instances, the subject of filming is

'police carrying out their duties in public,'" id. at 7 (quoting

Glik,

), though the court acknowledged that the

circumstances of filming a traffic stop were "substantially

different" than filming an arrest in a public park, id. at 5. In

doing so, this court emphasized that this holding did not mean "an

individual's exercise of the right to film a traffic stop cannot

be limited." Id. at 7. "The circumstances of some traffic stops

. . . might justify a safety measure -- for example, a command

that bystanders disperse -- that would incidentally impact an

8 Gericke eventually put away the camera in her car's central console on her own accord. Id. When Gericke refused to tell another police officer who had arrived on the scene where she had put the camera and to produce her license and registration upon his request, the officer arrested her for disobeying a police order. Id. at 3-4. The Weare police then filed criminal complaints against Gericke, including unlawful interception of oral communications. See id. at 4; N.H. Rev. Stat. Ann. § 570– A:2. Although town and county prosecutors declined to proceed on the charges against her, Gericke brought an action under

against the defendant police officers, the Weare Police Department, and the Town of Weare, alleging that "the officers violated her First Amendment rights when they charged her with illegal wiretapping in retaliation for her videotaping of the traffic stop." Gericke,

.

- 15 - individual's exercise of the First Amendment right to film."

.

In Project Veritas, this court held that this First

Amendment right to record "police officers discharging their

official duties in public space" included the right to make

"secret, nonconsensual audio recording[s]."

.

Project Veritas involved challenges made by two sets of plaintiffs

-- two Boston civil rights activists, K. Eric Martin and René Pérez

and a national undercover investigative journalism organization,

Project Veritas Action Fund -- to Massachusetts General Laws ch.

272, § 99 ("Section 99"), which criminalized secret audio

recordings made without prior permission by the recorded party.

Id. Martin and Pérez "allege[d] that Section 99 violate[d] the

First Amendment insofar as it criminalizes the secret,

nonconsensual audio recording of police officers discharging their

official duties in public spaces." Id. Project Veritas, in

contrast, challenged Section 99 "insofar as it bans the secret,

nonconsensual audio recording of any government official

discharging official duties in public spaces, as well as insofar

as it bans such recording of any person who does not have a

reasonable expectation of privacy in what is recorded." Id.

(emphasis added in part). Project Veritas also argued that Section

99 should be "struck down in its entirety" due to overbreadth.

Id.

- 16 - This court upheld judgment for Martin and Pérez, finding

that Section 99's prohibition on "secret, nonconsensual audio

recording of police officers discharging their official duties in

public spaces" violated the First Amendment. Id. More

significantly for present purposes, the court vacated on ripeness

grounds the district court's grant of summary judgment to Project

Veritas's challenge that Section 99 "violate[d] the First

Amendment insofar as that statute bars the secret, nonconsensual

audio recording of government officials discharging their duties

in public." Id. at 817-18. Project Veritas sought to challenge

Section 99's prohibition on recording "government officials" in

general, which it defined as "officials and civil servants,"

including persons "employed in a department responsible for

conducting the affairs of a national or local government," also

known as "public employee[s]." Id. at 843, 843 n.5 (citing

Official, Black's Law Dictionary (10th ed. 2014); Civil Servant,

Black's Law Dictionary (10th ed. 2014)). But its plans to record

government officials and police officers were too "narrow[]" to

raise the much broader issue of whether Section 99's prohibition

on recording all "government officials discharging their duties in

public spaces" violated the First Amendment. Id. at 843.

Importantly, this was because "government officials," as defined

by Project Veritas, "cover[ed] everyone from an elected official

to a public school teacher to a city park maintenance worker."

- 17 - Id. (emphasis added). This court rejected that definition. Id.

Indeed, the court held that the "First Amendment analysis might be

appreciably affected by the type of government official who would

be recorded;" for example, "a restriction on the recording of a

mayor's speech in a public park" would differ from "a restriction

on the recording of a grammar school teacher interacting with her

students in that same locale." Id. (emphasis added).

Pitta's First Amendment claim rests, as the district

court recognized, on a misreading of this Circuit's precedents in

Glik, Iacobucci, Gericke, and Project Veritas. These cases do not

support his argument that a First Amendment right to record exists

whenever "public officials" are operating in "public spaces."

Among other things, his argument ignores limitations imposed both

explicitly and implicitly by these cases. A student's IEP Team

Meeting, whether virtual or in person, is ordinarily not conducted

in a "public space." Further, this meeting could not be public

because only members of a student's IEP Team may attend an IEP

Team Meeting, and because IEP Team Meetings involve the discussion

of sensitive information about the student. Nor are school

district employees attending these meetings akin to the "public

officials" in the cases cited by Pitta. In most of these cases,

those "public officials" were law enforcement officers performing

their duties in obviously public places. We hold, as did the

- 18 - district court, that Pitta possesses no First Amendment right to

video record IEP Team Meetings and do so for a variety of reasons.

To start, an IEP Team Meeting does not ordinarily occur

in a space open to the public. Pitta argues that whether the

recording occurred in a public space or non-public space "[i]s

[i]rrelevant [f]or [t]he [p]urpose [o]f [a] [m]otion [t]o

[d]ismiss" because "[t]he specific forum merely identifies the

level of scrutiny applied to the government officials[']

restriction of First Amendment activity." He argues from this

that "[a] finding that the specific forum is a non-public forum"

does not foreclose a finding that he had a First Amendment right

to video record.

This Circuit's cases have found a First Amendment right

to record government officials performing their duties only when

those duties have been performed in public spaces. See Glik,

(protecting under the First Amendment a recording made

"in the Boston Common, the oldest city park in the United States

and the apotheosis of a public forum"); Gericke,

;

Project Veritas,

. In Project Veritas, we noted

that "[o]ur cases have fleshed out the contours of [the public

space] category":

traditional public fora, such as public parks like the Boston Common (which was the site of the recording in Glik,

); the sites of traffic stops, including those that occur on the sides of roads, see Gericke, 753

- 19 - F.3d at 8 . . .; and other "inescapably" public spaces, id. at 7, such as the location of the recording that occurred in Iacobucci v. Boulter,

(1st Cir. 1999), which concerned a journalist's arrest for openly recording members "of the Pembroke Historic District Commission" that were having a conversation in "the hallway" of the town hall immediately following an open public meeting,

.

Id. at 827. The setting of an IEP Team Meeting could hardly be

more different from these public spaces identified in Project

Veritas.

The IEP Team Meeting occurred in a password-protected

virtual meeting room under the control of a public school official.

Even if the IEP Team Meeting were not virtual, but in person, the

general public is not free to walk into a school and enter a

meeting of educators. Even parents, apart from the general public,

have no constitutional right to attend a meeting to which they

were not invited. See Carey v. Brown,

(1980)

(finding that the Constitution does not leave state officials

"powerless to pass laws to protect the public from . . . conduct

that disturbs the tranquility of spots selected by the people . . .

[for] buildings that require peace and quiet to carry out their

functions, such as . . . schools"); see also Hannemann v. S. Door

Cnty. Sch. Dist.,

(7th Cir. 2012) (holding

"members of the public do not have a constitutional right to access

school property"); Lovern v. Edwards,

(4th Cir.

- 20 - 1999) ("School officials have the authority to control students

and school personnel on school property, and also have the

authority and responsibility for assuring that parents and third

parties conduct themselves appropriately while on school

property."); Silano v. Sag Harbor Union Free Sch. Dist. Bd. of

Educ.,

, 724 (2d Cir. 1994) (finding appellant, a Board

of Education member, "did not have an unrestricted right to enter

the school classrooms or hallways during school hours"); Worthley

v. Sch. Comm. of Gloucester, No. 22-12060,

, at *5

(D. Mass. Apr. 12, 2023) (holding plaintiff, "as a member of the

public, does not have a constitutional interest to access the

school during school hours").9

9 We quickly dispatch Pitta's argument that this court should utilize what he calls a "Lawfully Present" standard to define what is a "public space." He argues that if a "member of the public was lawfully present while recording government officials," that space should be deemed public. None of the cases to which Pitta cites support his argument for a "Lawfully Present" standard. There is good reason for this. To give an example, a member of the public called for jury duty, and thus lawfully present in a jury room, does not have a First Amendment right to video record their fellow jurors during deliberations, nor the proceedings of the courtroom from the jury box. See

(a) (banning "record[ing], or attempt[ing] to record, the proceedings of any grand or petit jury in any court of the United States while such jury is deliberating or voting"); Fed. R. Crim. P. 53 ("Except as otherwise provided by a statute or these rules, the court must not permit the taking of photographs in the courtroom during judicial proceedings or the broadcasting of judicial proceedings from the courtroom."); Liviz v. Sup. Ct. of U.S., No. 18-12532,

, at *2 (D. Mass. Dec. 14, 2018), aff'd, No. 18-2252,

(1st Cir. Mar. 19, 2019) ("To the extent [the plaintiff] contends that there is a First

- 21 - The public did not, and could not by law or District

policy, have access to an IEP Team Meeting. Attendance is limited

to members of a student's IEP Team. See

(d)(1)(B), 1414(d)(1)(C) (defining the members of the IEP

team and policies for IEP Team attendance); 34 C.F.R. 300.321

(outlining policies for IEP Team composition and attendance).

In addition, the IEP Team Meetings not only take place

in non-public spaces and are closed to the public, but by their

nature involve discussions of personal, highly sensitive

information about a student. According to the Manual, these topics

include "the student's future dreams and goals," "how the student's

disability affects the student's learning," and "how the student

performs today," as well as "the areas that are affected by the

disability" and the "supports and services the student needs for

success," so that all attendees at the meetings can "gain a

comprehensive understanding of the student" and discuss or develop

an IEP "tailored to the individual student." See also

;

.05 (outlining the requirements for the IEP

development process under Massachusetts law).

Next, unlike the public officials in Glik, Gericke, and

Project Veritas, the IEP Team Members were not performing their

duties in public, but rather at a virtual meeting with no public

Amendment right of camera access to the Supreme Court and other federal courts, such a right has not been recognized.").

- 22 - access. The District has effectively argued that video recording

IEP Team Members would hinder their performance of their duties,

as it carries a high risk of suppressing the sensitive,

confidential, and honest conversations necessary when discussing

or developing a child's IEP. Public school teachers and

administrators carrying out their IEP obligations also do not wield

the same "power of suppression" as police officers, see Glik,

(quoting First Nat'l Bank of Bos. v. Bellotti,

, 777 n.11 (1978)), nor have they been "granted substantial

discretion that may be misused to deprive individuals of their

liberty," as law enforcement officials have,

Unlike police

officers, IEP Team Members are not "expected to endure significant

burdens caused by citizens' exercise of their First Amendment

rights." Id. at 84.

We thus also reject Pitta's overbroad argument that the

references to "public officials" or "government officials" in

Glik, Project Veritas, and Gericke, where these terms were used to

refer to police officers, extends to anyone employed by a

government. This court has never held that the test is whether an

individual sought to be video recorded in the course of his or her

job is a government official. Pitta's argument ignores established

limitations in First Circuit law, which permit recording of

government officials performing their duties only in indisputably

public places in full view of the public, and even then, only when

- 23 - the act of filming would not hinder officials in the performance

of their public duties and would serve public interests.

For example, in Glik, the court considered what it called

the "fairly narrow" First Amendment issue of whether "there [is]

a constitutionally protected right to videotape police carrying

out their duties in public." Id. at 82 (emphasis added). "The

same restraint demanded of law enforcement officers in the face of

'provocative and challenging' speech must be expected when they

are merely the subject of videotaping that memorializes, without

impairing, their work in public spaces." Id. (emphasis added)

(quoting City of Houston v. Hill,

(1987)).

In Gericke, the "government officials" at issue were

also police officers "carrying out their duties in public" while

conducting a traffic stop on the side of the road.

-

4, 7 (quoting Glik,

). This court held that the

officer, however, could prevent the recording if he "c[ould]

reasonably conclude that the filming itself is interfering, or is

about to interfere, with his duties." Id. at 8.

Project Veritas also does not support Pitta's argument.

This court held that individuals have a First Amendment right to

make "secret, nonconsensual audio recording[s]" only of "police

officers discharging their official duties in public spaces." See

. It also reaffirmed that "[t]he government is

under no obligation to permit a type of newsgathering that would

- 24 - interfere with police officers' ability to do their jobs."

. There, the record showed no evidence that secretly recording

police "would appreciably alter their ability to protect the public

either in gross or at the retail level of more individualized

interactions."

There is yet another reason Pitta's claim fails. Our

cases have repeatedly framed the right to record public information

as linked to the right of the public to receive this information.

Glik held that recording government officials in public spaces was

a protected First Amendment right because "[g]athering information

about government officials in a form that can readily be

disseminated to others serves a cardinal First Amendment interest

in protecting and promoting 'the free discussion of governmental

affairs.'"

(quoting Mills,

).

Because "'the First Amendment . . . prohibit[s] government from

limiting the stock of information from which members of the public

may draw,' . . . [a]n important corollary to this interest in

protecting the stock of public information is . . . [the] 'right

to gather news from any source by means within the law.'"

(emphasis added) (first quoting First Nat'l Bank,

,

then quoting Houchins v. KQED, Inc.,

(1978)

(internal citations omitted)). Similarly, Project Veritas

recognized First Amendment protection for secretly recording

police officers (extending from prior precedent that protected the

- 25 - open recording of police, see Glik,

; Gericke,

), because these recordings promote the "cardinal First

Amendment interest in protecting and promoting the free discussion

of governmental affairs," among other grounds,

(emphasis added) (internal citations omitted). No such interest

is served by video recording an IEP Team Meeting because such a

recording is not intended to be disseminated to the public.

Finally, we add that even if Pitta had a First Amendment

right to video record his child's IEP Team Meeting, which he does

not, his claim would fail. "Even protected speech is not equally

permissible in all places and at all times." Cornelius,

; accord Glik,

(holding a First Amendment

right to video record "may be subject to reasonable time, place,

and manner restrictions"); Gericke,

(holding

"[r]easonable restrictions on the exercise of the right to film

may be imposed when the circumstances justify them"). Here, the

District's prohibition on video recording these meetings is

content neutral and narrowly tailored to its significant

governmental interest in promoting candid conversations in the

discussion or development of IEPs in order to provide students

with a "free appropriate public education" ("FAPE") under the

Individuals with Disabilities Education Act ("IDEA"),

. The policy also leaves open several alternative

- 26 - channels for collecting and recording information from IEP Team

Meetings.

On the record before us, the District's policy is content

neutral.10 The policy does not "'draw[] distinctions based on the

message a speaker conveys.'" Rideout v. Gardner,

(1st Cir. 2016) (quoting Reed v. Town of Gilbert, Ariz.,

(2015)). The policy also does not "discriminat[e] among

viewpoints" or "regulat[e] speech based on 'the specific

motivating ideology or the opinion or perspective of the speaker.'"

Reed,

(quoting Rosenberger v. Rector and Visitors

of Univ. of Va.,

(1995)). "The government's

purpose is the controlling consideration" for whether a

restriction is content neutral, and here, the policy "serves

purposes unrelated to the content of expression." Ward v. Rock

Against Racism,

(1989). It thus "require[s] a

10Pitta argues to us that the District's prohibition on video recording was a viewpoint-based restriction because in his view it was "in direct response to [his] revealing the highly unethical and potentially unlawful actions of the school district['s] administrator" and because there was no written policy on video recording at the time. Policies need not be written and Pitta has not argued that other parents were not subjected to the same policy. Further, as Gericke held, a "[r]easonable restriction[] on the exercise of the right to" record may take a variety of forms, including not only a "preexisting statute, ordinance, regulation, or other published restriction with a legitimate public purpose," but also "a reasonable, contemporaneous order[.]"

.

- 27 - lesser level of justification" than a content-based restriction.

Rideout,

.

Content-neutral regulations "are subject to intermediate

scrutiny, which demands that the law be 'narrowly tailored to serve

a significant governmental interest.'"

at 71-72 (quoting Ward,

). "A speech restriction is sufficiently narrowly

tailored so long as the 'regulation promotes a substantial

government interest that would be achieved less effectively absent

the regulation.'" Signs for Jesus v. Town of Pembroke,

(1st Cir. 2020) (quoting Ward,

). "The

application of intermediate scrutiny also accords with the

approach that we took in Glik and Gericke, even though neither

case explicitly named the level of scrutiny deployed." Project

Veritas,

.

The purpose of the District's video recording

prohibition is to serve its "significant governmental interest,"

see Rideout,

, in meeting its responsibilities under

the IDEA. The IDEA provides federal funding to states to assist

them with educating children with disabilities and imposes

requirements, including that schools must provide all children

with disabilities with a FAPE "'in conformity with the [child's]

individualized education program,' or IEP." Parent/Pro. Advoc.

League v. City of Springfield,

(1st Cir. 2019)

(alteration in original) (quoting

(9)(D)).

- 28 - The IDEA requires that IEP Team Members create a written

IEP tailored to the "unique needs" of the student that expressly

addresses a number of sensitive and personal issues and questions.

, 1414. These include "a statement" regarding

"how the child's disability affects the child's involvement and

progress in the general education curriculum," "a statement of

measurable annual goals, including academic and functional goals,"

"a description of how the child's progress toward meeting the

annual goals . . . will be measured," and "a statement of the

special education and related services and supplementary aids and

services, based on peer-reviewed research to the extent

practicable, to be provided to the child, or on behalf of the

child, and a statement of the program modifications or supports

for school personnel that will be provided to enable the child

. . . to advance appropriately toward attaining the annual goals."

. As the appellees argue, "as an integral

component to their ability to facilitate the sort of earnest

discussion necessary to yield an appropriate IEP, IEP meeting

participants must enjoy wide latitude to engage as comfortably as

possible in a candid exchange of observations and ideas."

Promoting candor and protecting sensitive conversations

in IEP Team Meetings are "purposes unrelated to the content of

- 29 - expression." Ward,

. 11 The District's policy

prohibiting video recording of these meetings, which could stifle

these discussions, also "promotes a substantial government

interest that would be achieved less effectively absent the

regulation."

.

V.

For these reasons, we affirm the judgment of the district

court.

11 Pitta, allegedly relying on a DOE guidance document, argues for the first time in his reply brief that he needs to video record his child's IEP Team Meeting to meaningfully assert his parental rights protected by the IDEA. In any event, this is not a First Amendment claim and is waived. His belated claim is an administrative claim subject under the IDEA to exhaustion before it may be brought as a civil action in federal court. See

(l) (holding that "before the filing of a civil action . . . seeking relief that is also available under [the IDEA], the [IDEA's administrative] procedures . . . shall be exhausted"); see also Parent/Pro. Advoc. League,

- 21.

- 30 -