ACLU's Complaint in Zieper v. Metzinger

December 22, 1999

Lenora Lapidus
John C. Salyer
ACLU of New Jersey
35 Halsey Street, Suite B
Newark, NJ 07102
(973) 642-2086

Ann Beeson
Christopher A. Hansen|
American Civil Liberties Union
Foundation
125 Broad Street, 18th floor
New York, NY 10004-2400|
(212) 549-2500

Attorneys for Plaintiffs

MICHAEL ZIEPER, MARK WIEGER,
and BECamation,

 

Plaintiffs,

 

v.

 

JANET RENO, in her official capacity as
ATTORNEY GENERAL OF THE UNITED
STATES; LOUIS FREEH, in his official capacity
as DIRECTOR OF THE FEDERAL BUREAU OF
INVESTIGATION; MARY JO WHITE, in her
official capacity as UNITED STATES
ATTORNEY FOR THE SOUTHERN DISTRICT
OF NEW YORK; JOSEPH METZINGER,
individually and in his official capacity as
SPECIAL AGENT FOR THE FEDERAL
BUREAU OF INVESTIGATION; LISA
KOROLOGOS, individually and in her official
capacity as ASSISTANT UNITED STATES
ATTORNEY FOR THE SOUTHERN DISTRICT
OF NEW YORK,

 

Defendants.

 

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

 

Civil Action No. ________

 

 

 

 

COMPLAINT FOR
DECLARATORY, INJUNCTIVE
AND MONETARY RELIEF

 

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  • The addresses of plaintiffs are:

Michael Zieper
70 Park Avenue
Caldwell, NJ 07006-7479

Mark Wieger
26721 Hamilton Street
PO Box 207
Edwardsburg, MI 49112-0207

BECamation
26721 Hamilton Street
PO Box 207
Edwardsburg, MI 49112-0207

The addresses of defendants are:

Janet Reno, Attorney General
U.S. Department of Justice
950 Pennsylvania Avenue NW
Washington, DC

Louis Freeh, Director
Federal Bureau of Investigation
935 Pennsylvania Avenue NW
Washington, DC 20535

Mary Jo White, U.S. Attorney
Southern District of New York
1 St. Andrews Plaza
New York, NY 10038

Joseph Metzinger, Special investigator
Federal Bureau of Investigation
26 Federal Plaza
New York, NY 10007

Lisa Korologos, Assistant U.S. Attorney
Southern District of New York
1 St. Andrews Plaza
New York, NY 10038



PRELIMINARY STATEMENT  

  • This lawsuit concerns a short fictional film created by plaintiff Zieper entitled "Military Takeover of New York City," which purports to be a true account of a planned military takeover of Times Square during the millennial New Year's Eve. Zieper displayed his film on the World Wide Web at http://crowdedtheater.com, using plaintiff Wieger's Web hosting service, plaintiff BECamation. In this suit, plaintiffs seek declaratory, injunctive and monetary relief to redress the injuries they suffered from defendants' actions to suppress the film, which consists entirely of constitutionally protected speech. Defendants' actions were intentional and violated the First and Fifth Amendments to the United States Constitution. Defendant Special Agent Joe Metzinger of the FBI and Defendant Assistant United States Attorney Lisa Korologos acted pursuant to a policy and/or practice of Defendants Reno, Freeh, and White to take actions to suppress speech without any judicial determination that the speech is unprotected by law. In addition to seeking damages against Metzinger and Korologos, plaintiffs seek declaratory and injunctive relief requiring defendants to desist from and remedy this unconstitutional policy.

JURISDICTION AND VENUE  

  • This case arises under the United States Constitution and the laws of the United States and presents a federal question within this Court's jurisdiction under Article III of the federal Constitution and 28 U.S.C. §§ 1331. 
  • The Court has the authority to grant declaratory relief pursuant to the Declaratory Judgment Act, 28 U.S. § 2201 et seq. 
  • The Court has the authority to award costs and attorneys' fees under 28 U.S.C. § 2412. 
  • Venue is proper in this district under 28 U.S.C. § 1391(e).

PARTIES  

  • Plaintiff MICHAEL ZIEPER is a film maker who lives in West Caldwell, New Jersey. Zieper is married and has two young children. He received a bachelor's degree in Communications from Syracuse University in 1982. Since then, he has worked in the film business as a writer, editor, director, and production coordinator. Zieper exhibits his work using the stage name "Mike Z". Zieper is the sole creator of the film "Military Takeover of New York City," which he made available on the World Wide Web ("the Web") at http://crowdedtheater.com (hereinafter "crowdedtheater.com"). 
  • Plaintiff MARK WIEGER is the owner of BECamation, a company that hosts sites on the World Wide Web. Wieger is engaged and has three children. He operates BECamation out of his home in Edwardsburg, Michigan. BECamation is the Web hosting service for the crowdedtheater.com Web site. 
  • Plaintiff BECamation is a Web hosting business. BECamation is a Sub S corporation in Michigan and has its principle place of business in Edwardsburg, Michigan. 
  • Defendant ATTORNEY GENERAL JANET RENO heads the United States Department of Justice, which is the agency of the United States government responsible for enforcement of federal laws, and which includes the Federal Bureau of Investigation and the United States Attorneys' Office. She has ultimate authority for setting and enforcing the policies and practices of the Department of Justice, and for supervising all of its operations and functions. 
  • Defendant LOUIS FREEH is the Director of the Federal Bureau of Investigation (FBI), which is the principal investigative arm of the United States Department of Justice. He is responsible for setting and enforcing the policies and practices of the FBI, and for supervising all of its operations and functions. 
  • Defendant MARY JO WHITE is the United States Attorney for the Southern District of New York, which is the division of the United States Department of Justice that enforces federal laws within the Southern District of New York. She is responsible for setting and enforcing the policies and practices of the Office of the United States Attorney for the Southern District of New York, and for supervising all of its operations and functions. (Hereinafter, Defendants Reno, Freeh and White are collectively referred to as "the Justice Department defendants.") 
  • Defendant JOSEPH METZINGER is a Special Agent for the FBI based in New York City. 
  • Defendant LISA KOROLOGOS is an Assistant United States Attorney for the Southern District of New York, working in the criminal division. At all times, defendant Korologos' actions as alleged in this Complaint were taken in her role as investigator, not in her role as an advocate for the government.

FACTS GIVING RISE TO THIS ACTION

Defendants' Contacts with Plaintiff Zieper

  • In early October 1999, Plaintiff Michael Zieper videotaped the short film "Military Takeover of New York City" (hereinafter "Military Takeover" film) in Times Square in New York City. In the film, an actor purports to be a military officer who is briefing other officers regarding plans for a military takeover of Times Square on New Years' Eve, 1999. The actor never appears in the film, but is heard speaking only off camera. The visual images in the film consist entirely of street footage of Times Square during the day. The character of the military officer gives instructions to others about how they will participate in the planned takeover. The dialogue suggests that to initiate the takeover, the military will instigate a race riot by inciting racial unrest among bystanders and by staging a fake attempted rape. 
  • The "Military Takeover" film is part of a body of work created by Zieper which, though fictional, purports to depict real events. Zieper's films are part of a genre that also includes, for example, Orson Welles' "War of the Worlds," and the recent mainstream Hollywood movie "The Blair Witch Project." Zieper purposefully avoids the use of framing devices employed in conventional films that signal to the viewer that the events are fictional. For example, Zieper generally does not include credits at the beginning or end of his films. He believes that his films challenge viewers to think seriously about difficult social issues. The "Military Takeover" film raises issues about the upcoming millennium and people's fears about it, the distrust that many Americans feel about their government, and the use of racial hatred to manipulate the American people. 
  • After completing the film, Zieper decided to make it available for viewing on the Web. The Web is an important venue for independent film makers like Zieper who cannot afford the high cost of other types of film distribution, and who may be unable to interest mainstream film distributors and festivals. In addition, Zieper believes that the Web is a unique and important artistic forum for showing films because the Web does not provide the traditional frames that affect the perception and experience of viewers in contexts such as movie theaters and home video rental. 
  • Zieper contacted Plaintiff Mark Wieger and BECamation, and arranged to create a Web site to show the "Military Takeover" film at the address "http://crowdedtheater.com" (hereinafter crowdedtheater.com). BECamation's Web hosting service provided Zieper with the computer space for the Web site, and technical assistance in Web design and maintenance, including the use of software that allows for showing and viewing video files on the Web. 
  • The crowdedtheater.com Web site was completed and launched on October 28, 1999. The home page of the Web site includes a message that states: 

    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.

    The Web site includes an e-mail address, "fire@crowdedtheater.com," for users who want to communicate with the Web site owner about the film. 

  • Zieper posted messages with a link to the crowdedtheater.com on various interactive discussion boards on the Internet to generate interest in the film. These messages, and the film itself, prompted discussion about the film on a number of Internet discussion boards. Zieper also received e-mails at his address, "fire@crowdedtheater.com," commenting on the film. 
  • On Monday, November 8, 1999, UPN Channel 9 News in New York City contacted Zieper to arrange to interview him for a story about the crowdedtheater.com Web site and the "Military Takeover" film. 
  • On Wednesday, November 10, 1999, the interview was broadcast during the 10 p.m. newscast on UPN Channel 9 News. The interview identified Zieper as the creator of the film. 
  • Prior to the broadcast, during the evening of November 10, 1999, Zieper and his wife and children were visiting his relatives in another town in New Jersey. They planned to watch the UPN news coverage together. Around 8 p.m., Zieper received a call on his pager. When he returned the call, the phone was answered by a police officer with the Caldwell Police Department. The Police Officer informed Zieper that he was standing at the door of Zieper's home in West Caldwell, with agents from the FBI, who wanted to speak with Zieper about the "Military Takeover" film. Zieper immediately feared that he might be arrested, and became concerned about the impact on himself and his family. 
  • Zieper told the police officer that he would not be home that evening, and agreed to call the following day to arrange for a meeting with the FBI agents. After hanging up the phone, Zieper received a second call on his pager, from the same number. When Zieper returned the call, the phone was answered by Defendant Special Agent Joe Metzinger of the FBI. Metzinger identified himself, and explained the reason he wanted to meet with Zieper. Metzinger said that he knew that Zieper had a Web site that had been receiving a lot of activity. Metzinger said that the site was causing a lot of concern, and that people had asked the FBI what was going on. Metzinger said that there were a lot of people planning to take vacations and to be in Times Square for New Year's, and a lot of businesses involved. Metzinger told Zieper that the FBI was trying to find out about the video. He asked Zieper where he had gotten the video tape. 
  • Zieper became afraid at that point that the FBI might believe the film to be real, and became more fearful that he might be arrested. In order to protect himself, he decided not to answer any more questions about the film without legal advice. Zieper asked Metzinger whether they could discuss the film the following day, and Metzinger said yes. 
  • Metzinger then asked Zieper whether in the meantime there was any way the FBI could get people to stop seeing the video on the Internet. Zieper said he didn't think so, because UPN news was broadcasting a story about the film that evening. Metzinger then asked whether Zieper could call UPN and ask them not to run the story. Zieper said he didn't think he could stop them from running the news story, but that he supposed that the FBI could make that call. He said he didn't think UPN would drop the story if he called himself. Zieper was then given a phone number to the FBI squad room and told to call at 3 p.m. the next day, November 11, 1999. 
  • After Zieper hung up the phone, he became very anxious for himself and his family. The FBI had indicated that criminal activity was associated with Zieper's Web site and film. Zieper currently cares for his children at home during the day while his wife works, and he worried about what would happen to his children if he were arrested. He feared that the children might be put in protective custody, which would be traumatic for them. 
  • As a result of the calls from the FBI, Zieper was afraid to go home to West Caldwell with his family, and spent the evening at his relatives. For fear that the FBI would return to his home and arrest him, he did not return home until Friday evening, November 12, 1999. 
  • On Thursday, November 11, 1999, Zieper contacted lawyers for advice regarding the calls from the FBI. He did not call the FBI as planned at 3 p.m. At 3:30 p.m, Zieper received a voice mail message on his pager from Metzinger, asking why Zieper had not called. A few minutes later, Metzinger called Zieper's pager again and this time left his phone number. Zieper did not return the call. Later in the day, attorneys Scott Thompson and Peter Skolnik contacted Metzinger on Zieper's behalf. Metzinger informed Zieper's attorneys that additional FBI agents were currently on their way to Zieper's home. Attorneys Thompson and Skolnik told Metzinger and the FBI to contact them if the agents wished to speak with Zieper. Metzinger said he was not sure he could contact the agents before they reached Zieper's home. 
  • Spokespersons for the Justice Department defendants were quoted in news articles during the next several days saying that they were involved in an ongoing investigation of Zieper. In later articles, spokespersons for the Justice Department defendants indicated that the investigation was closed. 

    Defendants' Contacts with Plaintiff Wieger

  • On or about Monday, November 15,1999, Plaintiff Mark Wieger received a conference phone call from Defendant Special Agent Metzinger and Defendant Assistant United States Attorney Lisa Korologos. They asked whether he was the owner of crowdedtheater.com. Wieger told them he was not the owner, but just provided Web hosting services for the site. Metzinger and Korologos described the crowdedtheater.com Web site, saying that it contained a grainy video about a supposed military takeover of Times Square on New Year's Eve. They told Wieger that they had received calls from people asking if the film were real or not. Quoting some of the dialogue from the film, they said they were concerned that the tape could start a race riot because it contained racial slurs, and a suggestion of rape. (In fact the film contains no racial slurs.) They told Wieger that it was their job to make sure that a riot did not occur and to ensure that people would not go to Times Square thinking that a riot would occur. They said that they did not want people showing up in Times Square on New Year's Eve with guns and knives watching for any military people or police to make a wrong move. 
  • Metzinger and Korologos explained to Wieger that they had traced the crowdedtheater.com Web site to him through GTE (an Internet Service Provider) and back to Online Marketing, LLC ("OLM"), which is the business with whom Wieger contracts to lease the computer space on the Internet for his clients. Metzinger and Korologos said they had contacted OLM, and had left a message asking them to take down the site if Wieger did not take it down. 
  • At that point Wieger became afraid that OLM would cancel their account with him as a result of pressure from the FBI, which would devastate Plaintiff BECamation because all of BECamation's clients rely on the leased computer space provided through OLM. 
  • Wieger asked Metzinger and Korologos what they wanted from him. The agents replied that they wanted to know how they could stop people from seeing the video. Wieger asked whether they wanted him to block access to the video, and they said yes. 
  • Wieger then asked Metzinger and Korologos if they knew who owned the site, and they said yes. Metzinger and Korologos told Wieger that they had been in contact with Zieper and his lawyers. They told Wieger that they had asked Zieper to take down the site, but that Zieper had refused. 
  • Wieger asked Metzinger and Korologos whether he should contact Zieper, and they said no. Metzinger and Korologos told Wieger that if Zieper called him, Wieger should tell Zieper to contact them. Wieger asked for their phone numbers, which they gave him. 
  • As a result of the call from Metzinger and Korologos, Wieger was afraid for himself, his business and his family. He had no lawyer to call for advice and could not afford one. 
  • While Metzinger and Korologos were still on the phone, Wieger pulled up the crowdedtheater.com Web site on his computer, and removed the link on the front page of the site to the file containing the "Military Takeover" film. He also put a message on the home page of the site saying the site was disabled. He told Metzinger and Korologos that he had disabled the link to the "Military Takeover" film on the site, and they thanked him. 
  • Wieger phoned his fiancée, who reacted with fear and panic when she learned that the FBI had called. 
  • Wieger then called Lisa Korologos. When the phone was answered as the United States Attorney's Office, and Wieger confirmed that he had in fact been speaking with federal officers, his anxiety level increased. 
  • Wieger told Korologos that he wanted to explain again what he had done to disable the "Military Takeover" film on the crowdedtheater.com Web site. He said he wanted to ensure that he had complied with the request from Metzinger and Korologos. Wieger explained again that he had disabled the link to the film, and Korologos asked whether people could still access the film. Wieger said that it was possible that some people could still get to the film if they knew the exact address of the computer file in which the film was located on the Web. Wieger then asked what he should do. Korologos asked him whether he could take all the content off the crowdedtheater.com Web site. She said she did not want anyone to be able to see the film anymore. Wieger explained that he would permanently delete all of the files, and would remove the account on his server for the crowdedtheater.com domain name the next day. He explained that this would prevent people from accessing the Web site at all. Towards the end of the call, Wieger reiterated that he just wanted to make sure that he was not in any trouble with Korologos or the FBI. Korologos asked again whether he would delete all of the files on crowdedtheater.com site. When Wieger answered yes, Korologos said "that's fine, thank you." 
  • After speaking with Korologos, Wieger deleted all of the files related to the crowdedtheater.com Web site, and removed the account on his servers for the crowdedtheater.com domain name. 
  • The calls with Metzinger and Korologos caused Wieger to fear that he could be arrested by the FBI or other federal law enforcement agents. He also feared that the FBI or another federal agency would seize his computers or take other actions that would ruin BECamation. 
  • Late in the afternoon of Monday, November 15, 1999, Zieper logged onto the Web to check on his Web site, and saw that the link to the "Military Takeover" film had been removed. He contacted Wieger, who explained that he had to disable the site because he had been called by the FBI and told to do so. 

    The Harm to Wieger and BECamation

  • A number of news articles reported on the closure of the crowdedtheater.com Web site as a result of the FBI calls to Wieger. These articles included stories in The Village Voice; Wired News; APBnews.com (a wire service); and the Freedom Forum Free! online news site. Many of the articles were published and distributed on the World Wide Web and on Internet discussion boards. The articles were generally critical of Wieger's willingness to yield to defendants' pressure to remove the site. 
  • Beginning on or about November 24, 1999, Wieger began receiving hundreds of e-mails from Internet users that attacked and insulted him and BECamation for shutting down the crowdedtheater.com Web site. In Internet parlance, these e-mail insults and attacks are known as "flames." 
  • BECamation has a Web site that promotes its services. The site contains links to many of BECamation's clients, and also contains a "guestbook and bulletin board" feature that allows users of the Web site to post comments that can be read by other users. Internet users posted attacks and insults related to the closing of the crowdedtheater.com site in the BECamation guestbook and bulletin board. 
  • Several discussion boards on the Internet also discussed the closure of crowdedtheater.com. Users posted messages encouraging other users to send flames to Wieger opposing the closure of crowdedtheater.com. Some users posted messages encouraging other users to send messages to BECamation clients encouraging them to discontinue their business with BECamation. 
  • Some of BECamation's clients sent e-mail messages to Wieger complaining that they had received messages about the crowdedtheater.com closure. These clients demanded an explanation. 
  • Wieger and BECamation also received an e-mail message that contained a computer virus, which could have substantially disrupted his computers. 
  • BECamation has a toll-free number that is listed on the BECamation Web site, and Wieger and BECamation received harassing phone calls on this line about the closure of crowdedtheater.com. The phone line is located in Wieger's home. Wieger received one harassing call at 1:30 in the morning. 
  • Wieger spent at least eighty percent of his time during the next several days responding to the attacks on his business and trying to salvage his reputation and that of BECamation. He continues to spend substantial time repairing the damage that has been done to BECamation. 
  • BECamation is a new company that has not yet made a profit, and that cannot afford any damage to its reputation. The ongoing damage to BECamation has caused Wieger to experience extreme distress and anxiety. 
  • On Friday, November 26, 1999, Wieger sent an e-mail to OLM to explain the situation and to ask whether they could do anything to help. OLM replied by e-mail and suggested that Wieger contact the FBI to ask what legal basis they had for requesting that the site be shut down. If the FBI provided no legal basis for the request, OLM suggested that Wieger should put the site back up on the Web. 
  • Wieger became angry that Metzinger and Korologos had misled him about both their contact with OLM and their insinuation that Wieger had to shut down the site because he and Zieper were in trouble with the FBI. 
  • After speaking with Zieper, Wieger decided to put the crowdedtheater.com site and the "Military Takeover" film back on the Web. 
  • Wieger also issued a press release, which he published on the BECamation Web site. The press release informed the public that the crowdedtheater.com Web site was accessible again, and explained Wieger's prior actions and his reasoning for shutting down the site. 
  • Although the crowdedtheater.com site was back on the Web, Wieger continued to receive e-mail flames. While some news articles announced the reinstatement of the Web site, the prior articles about the closure of the site are still available and in circulation on the Web. 

    The Damage to Plaintiffs Zieper, Wieger and BECamation

  • Plaintiff Zieper was damaged and continues to be damaged as a result of defendants' actions described above. He and his family have suffered considerably due to the possibility that he might be arrested and imprisoned at any moment. 
  • Plaintiff Zieper suffered and continues to suffer damage to his reputation as a result of defendants' actions described above, including the investigation of plaintiff Zieper by defendants and the public knowledge that defendants suppressed his speech. 
  • Plaintiff Zieper was damaged and continues to be damaged as a result of defendants' violation of his First Amendment rights. 
  • Plaintiff Wieger and BECamation were damaged and continue to be damaged as a result of defendants' actions described above. Wieger and his family have suffered considerably during the investigation. 
  • Plaintiff Wieger and BECamation suffered and continue to suffer damage to reputation as a result of defendant's actions described above, including the investigation by defendants, the public knowledge that defendants suppressed speech hosted by Wieger and BECamation, and the actions that Wieger took to remove plaintiff Zieper's Web site upon defendants' requests. 
  • Plaintiffs Wieger and BECamation were damaged and continue to be damaged as a result of defendants' violation of their First Amendment rights. 

    Defendants Acted According to an Unconstitutional Policy or Practice

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