You are preparing a report for an upcoming meeting when a challenging visitor arrives at your facility’s public counter. The visitor records the encounter with their phone and asks questions such as, “What’s your name?” What’s your job title? What are you working on?” while trying to hover over the computer monitor to view what you are drafting. “What’s in that area over there?” they say as they try to open a swinging half door that leads to employee office spaces. What would you do?
Situations such as these continue to take place across the country. First Amendment audits are a social movement made up of individuals interested in making videos of their encounters with public officials, including law enforcement. If the encounter results in an actual or perceived violation of the auditor’s First Amendment or other protected rights, the video will likely be posted on social media and/or serve as the basis for a claim or suit. A violation may occur if the auditor is denied the right to take photos or videos in a public place or is detained for “suspicious” activity or other reasons. Other audit scenarios could occur during public comment periods at governing body meetings. A First Amendment claim may result if the auditor is denied the right to speak on a particular topic during public comment or in a particular fashion.
A First Amendment auditor’s goal is to provoke a response. Auditors believe that the movement promotes transparency and open government. They are testing if their constitutional rights will be upheld. Many post their videos online to make money from video views.
The First Amendment states, Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. A First Amendment auditor’s focus is to identify the proper or improper response of public employees when in the presence of a camera. No laws prohibit recording activities in a public place; however, this does not include the right to trespass into non-public spaces to take photos/videos or interfere with law enforcement operations. However, it is important to note that it has been established that video recording of police encounters is a form of speech protected by the First Amendment. Fields v. City of Philadelphia stated that “under the First Amendment’s right of access to information, the public has the commensurate right to record—photograph, film, or audio record—police officers conducting official police activity in public areas.”
While it may be uncomfortable for public officials and employees to be recorded, responding diplomatically and respectfully is essential. Public employees should use diplomatic and non-threatening language when interacting with the auditor. If agency employees make inaccurate statements, they will be further challenged and highlighted in the auditor’s video footage.
If an auditor enters your agency’s facility and records the surroundings, greet the person and remain composed. Avoid debating and continue with your duties. Remember to answer basic public information questions such as first name and title. DO NOT record the auditor, argue with them, engage in a physical altercation, detain, or try to confiscate the recording. Contact law enforcement if laws are being broken. The First Amendment auditor may respond by saying they do not need assistance and will continue recording, sometimes leaving shortly after that if they do not get the altercation or response they sought. First Amendment auditors often act provocatively, hoping that employees will shield themselves from view, ask them to stop recording, follow them around, ask for identification, or be recorded by the public employees in return. Such responses to auditors help them gain followers on social media.
The Authority provides the following First Amendment audit guidance for employees and elected and appointed officials:
- Ensure staff and elected and appointed officials know fundamental Constitutional law, specifically the freedom of the press, and how that translates to what First Amendment auditors are doing.
- Conduct a walk-through of your agency’s public facilities. Ensure that non-public spaces are secured and identified with signage (e.g., “employees only,” “restricted area-authorized personnel only”). Do not wait until a First Amendment auditor visits your facility to identify an area as non-public.
- Communicate to employees that First Amendment auditors are prohibited from entering non-public spaces and taking photos/videos where there is a reasonable expectation of privacy.
- Advise employees and elected and appointed officials that if they are in a public place, they are subject to being video recorded without consent. The First Amendment auditor is not required to state their name or explain their reason for recording.
- If citizens are conducting business regarding private or confidential matters, consider moving this business out of public space.
- Cover confidential information in public workspaces.
- Know the difference between an audit and surveillance. Auditors are obvious about recording and seek attention. Someone scoping out property operates covertly, tries to go unnoticed, and will likely not engage with people. If you see something, say something. Report suspicious activity to law enforcement. For information on recognizing suspicious activity, visit the Department of Homeland Security’s website.
- Communicate the importance of providing consistent customer service to all customers, including First Amendment auditors. If the auditor begins to use profanity or disruptive language, do not respond in kind. Remaining calm and professional is critical. Some employees may need to remove themselves from the situation to contact their manager or supervisor for assistance.
- Law enforcement may order individuals to stop activities or actions if they are deemed to be interfering with law enforcement operations.
- Communicate to employees and elected and appointed officials about an individual’s right to speak during public comment periods at public meetings, regardless of who they are. The speaker’s subject matter and comments should not be restricted, as doing so could lead to potential First Amendment challenges.
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