Imagine a stranger arriving at city hall, walking through the lobby and hallways, video recording everything and everyone — employees, or maybe utility customers paying their water bill. When asked, the person will not provide identification or an explanation for his recording, but will act confrontationally, declaring an intention to remain at city hall, recording, no matter what.
This situation has all the hallmarks of a “First Amendment audit,” in which the person involved asserts a First Amendment right to record video in public places. It often results in tense encounters with public employees and officials, and many participants will upload these videos to YouTube.
When the person recording encounters demands to leave or face potential arrest, he will assert that the local government involved “failed the audit.” Understanding the law is key for all officials who might encounter these situations.
Legal background of First Amendment audits
Because of cellphones, most people now have video cameras in their possession at all times. After high-profile police encounters in New York, Baltimore and Ferguson, Missouri, activists are increasingly filming encounters between police and suspects, and federal courts have been highly protective of the rights of individuals to film police officers in public places.
Courts have 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."
First Amendment auditors soon began exploring more wide-ranging possibilities, since the federal cases affirm a right to film "public officials" in "public places." Many first amendment auditors now move throughout a public building and video everything, both as a demonstration and as a test to see if they will be stopped or arrested.
The First Amendment is not absolute. The Supreme Court has recognized that there are certain locations where 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 police and fire stations, public schools, courthouse lobbies and hallways, and the interior of government office buildings. Here, governments may impose significantly more restrictive regulations.
Preparing for First Amendment audits
These audits tend to be uncomfortable and even disruptive, but there are practical ways to plan for them:
- Make employees aware and train them to avoid overreacting. Public-facing employees should have some familiarity with these audits, the right of someone to film public employees in public places and how to respond. The best defense is awareness of the law and simple patience — videos of employees responding calmly, deflecting or defusing inflammatory statements they hear, do not make interesting YouTube content.
- Identify and mark nonpublic forums. Auditors might try to enter private areas such as hallways, offices and other workspaces, but the municipality has a right to mark these as nonpublic and to impose reasonable regulations on recording in them. Nonpublic forums include areas where under ordinary circumstances, visitors must be invited before entering.
- Consider rules about harassment. Some auditors may engage in conduct that rises to the level of harassment. They might invade the privacy of private residents, or target a single employee for recording repeatedly and at length. Municipalities can adopt appropriate regulations about such harassment and abusive behaviors.
- Consult with the municipal attorney before adopting regulations. The rules are complex and First Amendment violations can result in monetary liability.
The Municipal Association offers a recorded video presentation on First Amendment audits.