See FED. R. EVID. 801(c) (“‘Hearsay' means a statement that . . . a party offers in evidence to prove the truth of the matter asserted in the statement.”); see also Klatch-Maynard v. Sugarloaf Twp., 2011 WL 3476814, at *1 (M.D. Pa. Aug. 9, 2011) (“Defendants assert that the audio recording is not being offered to establish the truth of what was asserted at the meeting; rather, it is being offered to show what was stated at the meeting. Therefore, the Court must deny Plaintiffs' hearsay objections[.]”); Madden v. Town of Hempstead, 2019 WL 1439935, at *8 n.8 (E.D.N.Y. Mar. 29, 2019) (“[T]he audio recordings of the Town Board meetings do not constitute inadmissible hearsay, as they are not proffered to prove the truth of the statements asserted therein.” (citing FED. R. EVID. 801(c)(2)))
Public meetings such as that of the Nassau County Legislature are limited public fora. See e.g., Tyler v. City of Kingston, 593 F.Supp.3d 27, 31 (N.D.N.Y. 2022) (“A public City Council meeting . . . is normally considered a limited public forum”), aff'd 74 F.4th 57, 61 (2d Cir. 2023)); Madden v. Town of Hempstead, No. 16-CV-6835 (SJF) (AKT), 2019 WL 1439935, at *14 (E.D.N.Y. March 29, 2019) (citing a string of cases for the proposition that “a public meeting of an elected municipal board . . . is considered to be a limited public forum”).
In contrast, the evidence here reflects no such extreme circumstances and, accordingly, fails to elevate “[h]urt feelings” stemming from not being named sole valedictorian into an actionable First Amendment retaliation claim. Madden v. Town of Hempstead, No. 16-CV-6835, 2019 WL 1439935, at *16 (E.D.N.Y. Mar. 29, 2019) (granting summary judgment to defendants because “plaintiff's conclusory allegations of emotional and psychological harm, anxiety, intimidation and harassment are insufficient to withstand summary judgment”); cf. Zelnik, 464 F.3d at 228-29 (holding that “an individual of ordinary firmness would [not] be deterred or dissuaded from exercising his free speech rights if threatened with the withholding of [a] purely honorific title”). Doe relied on cases finding “embarrassment, humiliation, and emotional distress” to be sufficient concrete harm, 2018 WL 3824133, at *13, but there is nothing embarrassing or humiliating about being co-valedictorian.
Thus, the video itself is not hearsay, and it would not be hearsay for Plaintiff to testify as to his observations of the videotape. Cf. Madden v. Town of Hempstead, No. 16-cv-6835, 2019 WL 1439935, at *3 n.6, 2019 U.S. Dist. LEXIS 56581, at *8 n.6 (E.D.N.Y. Mar. 29, 2010) (holding that a security video recording “which [did] not contain audio” was not inadmissible hearsay).
Moreover, “an affiant may testify as to the contents of records she reviewed in her official capacity.” Madden v. Town of Hempstead, No. 16-cv-6835 (SJF)(AKT), 2019 WL 1439935, at *12 (E.D.N.Y. Mar. 29, 2019) (quoting Searles v. First Fortis Life Ins. Co., 98 F.Supp.2d 456, 461 (S.D.N.Y. 2000)). DISCUSSION
Thus, Pastore's affidavit and his assertions about the recording are admissible. See, Fed.R.Civ.P. 56(c)(4); Madden v. Town of Hempstead, 2019 WL 1439935, at *12 (E.D.N.Y. Mar. 29, 2019).
Nos. 38-2, ¶ 3; 38-4, ¶ 4; 38-6, ¶ 3; 38-7, ¶ 7). See Madden v. Town of Hempstead, No. 16-CV-6835, 2019 WL 1439935, at *15, 2019 U.S. Dist. LEXIS 56581, at *45 (E.D.N.Y. Mar. 29, 2019) ("[T]he Town clearly had a significant interest in conducting its meeting in an orderly and effective fashion") (internal quotation marks and citations omitted); Brenchley v. Vill. of Phoenix, No. 5:01-CV-0190, 2005 WL 2437027, at *4, 2005 U.S. Dist. LEXIS 48212, at *11 (N.D.N.Y. Sept. 30, 2005) ("It is settled law that the Village had a significant interest in conducting its meeting in an orderly and effective fashion . . . .") (internal quotation marks and citation omitted); see also Komatsu v. City of New York, No. 20-CV-7046, 2021 WL 256956, at *2, U.S. Dist. LEXIS 14522 at *4-5 (S.D.N.Y. Jan. 26, 2021) (finding that City Council acted reasonably in refusing to let the plaintiff speak at meeting where he did not properly sign in). Nonetheless, Plaintiff argues that Defendants' enforcement of the Blue Card Rules at the May 18, 2017 meeting was specifically intended to silence her views about personnel matters.
It would be different if Plaintiffs identified a particular phrase spoken by one of the actors, and argued it was being presented for the truth of the matter stated, but Plaintiffs have not done so here. The hearsay rule therefore does not apply."); Madden v. Town of Hempstead, No. 16-CV-6835, 2019 U.S. Dist. LEXIS 56581, at *8 n.6 (E.D.N.Y. Mar. 29, 2019) (security video without audio was not a statement, and therefore did not constitute inadmissible hearsay, where it merely depicted the events that occurred at a particular location on a particular day and nothing could be construed as nonverbal conduct that any person depicted on the video intended to be an assertion). The Sixth Circuit has found instances where a video, including the nonverbal conduct in a video, constitutes a hearsay "statement" under the Federal Rules of Evidence. United States v. Martinez, 588 F.3d 301, 310-11 (6th Cir. 2009).
Where an affidavit is more akin to an adversarial memorandum than a bona fide affidavit, a court may, in considering a motion for summary judgment, simply decline to consider those aspects of the affidavit that do not appear to be based on personal knowledge or are otherwise inadmissible.Madden v. Town of Hempstead, No. 16-CV-6835(SJF)(AKT), 2019 WL 1439935, at *11 (E.D.N.Y. Mar. 29, 2019) (citations and internal quotation marks omitted). A court may also decline to consider statements in the non-movant's affidavit that either contradict his prior sworn statements, are not based on personal knowledge or are otherwise inadmissible.
A reasonable restriction may prohibit disruptive behavior, as the Government has "a significant interest in conducting its meeting[s] in an orderly and effective fashion." Madden v. Town of Hempstead, No. 16 Civ. 6835, 2019 WL 1439935, at *15 (E.D.N.Y. Mar. 29, 2019). The Government also may not retaliate against a private citizen for engaging in First Amendment activity.