The city clerk is busily preparing council meeting minutes when an unexpected and confrontational visitor arrives. The person gives no reason for the visit or an identification, but instead demands answers: "What is your name? What is your job here? What's in that room over there?" The person is also recording the encounter with a mobile phone and begins to walk down the hallway into the private office areas.
What should the clerk do?
This situation has occurred more and more across South Carolina and the country. Social media activists, armed with mobile devices and a YouTube channel, have been pushing the boundaries of the First Amendment by entering public buildings, disrupting business and recording reactions. These "First Amendment auditors" are loosely organized, but aggressive; and their primary goal is to provoke a reaction.
In 1991, George Holliday happened to have a video camera on hand to record an unarmed suspect, Rodney King, being violently beaten by the Los Angeles Police Department. The video captured by Holliday has been broadcast globally and seen millions of times.
Today, nearly every person has a video camera at all times in the form of a mobile phone. After high-profile police encounters in New York, Baltimore and Ferguson, Missouri, citizen activists are filming encounters between police and suspects. In this context, the federal courts have been highly protective of the rights of citizens to film police officers in public places.
It is clearly established that video recording of police encounters is a form of speech protected by the First Amendment. The case of Fields v. City of Philadelphia stated that the First Amendment provides the public a "right to record — photograph, film, or audio record — police officers conducting official police activity in public areas."
Although the phenomenon emerged as a way to monitor police activity, First Amendment auditors soon began exploring other possibilities, since the language of the federal cases found a First Amendment right to film "public officials" in "public places." By slightly expanding the original meaning of those words, First Amendment auditors claimed the right to film public employees going about their business in public buildings. For example, auditors now arrive at government buildings in groups to wander around, filming and interfering with workers and residents.
The First Amendment is not absolute. The Supreme Court has recognized that there are certain places, known as "forums," in which the government can limit speech. The most protected areas are "traditional public forums" such as streets, sidewalks, parks and town squares, where governments may impose only very limited speech regulations. Other areas within public property are known as "nonpublic forums," such as military bases, police and fire stations, public schools, courthouse lobbies and hallways, and the interior of government office buildings. In those, governments may impose significantly more restrictive regulations.
A First Amendment audit is always uncomfortable and can be disruptive, but there are practical ways to prepare and respond:
- Educate employees. All public-facing employees should have some familiarity with First Amendment audits and how to respond. Although the auditors often exceed their rights under the First Amendment, they do have the right to film public employees in public places.
- Don't overreact. Auditors are trying to provoke a negative reaction that they can post on social media. A video of a public employee responding calmly is not going to result in much traction. The best defense is simple patience.
- Identify and mark nonpublic forums. In many cases, auditors will try to enter private areas, hallways or offices. The municipality has a right to mark these areas as nonpublic and to impose reasonable regulations on the right to film in them. Nonpublic forums can include any areas into which, under ordinary circumstances, visitors must be invited before entering. Examples include hallways, cubicles, offices and workspaces.
- Consider rules about harassment. Some auditors may engage in conduct that rises to the level of harassment. They may claim they can demand answers or invade the privacy of private residents. In at least one instance in South Carolina, an individual claiming to be an auditor harassed a female employee by filming her repeatedly and at length. Municipalities can adopt appropriate regulations about such harassment and abusive behaviors.
- Before adopting any specific regulations, a municipality should consult with its attorney. The rules are complex and violations of the First Amendment can result not only in an embarrassing YouTube video but also monetary liability. Again, the most important thing to remember is to keep calm.
Listen to Season 1, episodes 48 and 49 of the City Quick Connect podcast to learn more about First Amendment audits.