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First Amendment audit

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Thumbnail of a First Amendment audit video on YouTube

First Amendment audits are a largely American social movement that usually involves photographing or filming from a public space. It is often categorized by its practitioners, known as auditors, as activism and citizen journalism that tests constitutional rights;[1] in particular the right to photograph and video record in a public space.[2][3] Auditors believe that the movement promotes transparency and open government.[4] However, critics argue that audits are often confrontational in nature, as auditors often refuse to self-identify or explain their activities.[5][6] Some auditors have also been known to enter public buildings asserting that they have a legal right to openly carry firearms, leading to accusations that auditors are engaged in intimidation, terrorism, and the sovereign citizen movement.[7][8][9]

Auditors tend to film or photograph government buildings, equipment, access control points and sensitive areas, as well as recording law enforcement or military personnel present.[10] Auditors have been detained, arrested, assaulted, had camera equipment confiscated, weapons aimed at them, had their homes raided by a SWAT team, and been shot while video recording in a public place.[11][12][13][14][15][16] Such events have prompted police officials to release information on the proper methods of handling such an activity.[17][18] For example, a document sponsored by the International Association of Chiefs of Police states that the use of a recording device alone is not grounds for arrest, unless other laws are violated.[19]

The practice is predominantly an American concept, but it has also been seen in other countries including the United Kingdom,[20][21] Canada, and India.[citation needed]

Behavior

Auditors typically travel to a place that is considered public property, such as a sidewalk or public right-of-way, or a place open to the public, such as a post office or government building, and visibly and openly photograph and record buildings and persons in their view.[22]

In the case of sidewalk or easement audits, the conflict arises when a property owner or manager states, in substance, that photography of their property is not allowed. Sometimes, auditors will tell property owners upon questioning that they are photographing or recording for a story, they are photographing or recording for their "personal use", or sometimes auditors do not answer questions. Frequently, local law enforcement is called and the auditor is sometimes reported as a suspicious person and are often also identified as having been on private property. Some officers will approach the auditors and request his or her identification and an explanation of their conduct. Auditors refusing to identify sometimes results in officers arresting auditors for obstruction of justice, disorderly conduct, or other potential or perceived crimes.[23][24]

Legality

The legality of recording in public was first clearly established in the United States following the case of Glik v. Cunniffe,[25] which confirmed that restricting a person's right to film in public would violate their First and Fourth amendment rights. As the 7th Circuit Federal Court of Appeals explained in ACLU v. Alvarez, "[t]he act of making an audio or audiovisual recording is necessarily included within the First Amendment’s guarantee of speech and press rights as a corollary of the right to disseminate the resulting recording. The right to publish or broadcast an audio or audiovisual recording would be insecure, or largely ineffective, if the antecedent act of making the recording is wholly unprotected."[26][27] However, the legality of the auditors' actions beyond mere filming are frequently subject to debate. As long as the auditor remains in a public place where they are legally allowed to be, they have the right to record anything in plain view, subject to time, place, and manner restrictions.[28][29]

Some auditors occasionally yell insults, derogatory language, and vulgarities at police officers who attempt to stop them from recording or improperly demand identification.[10] Police will sometimes charge auditors with disorderly conduct when they engage in behavior that could be considered unlawful. For example, an auditor in San Antonio was prosecuted and convicted of disorderly conduct after an audit.[30] After the trial, the Chief of Police for the City of San Antonio stated "[the verdict] puts a dagger in the heart of their First Amendment excuse for insulting police officers..."[31] Despite the San Antonio Police Chief's statement, insulting the police is consistently treated as constitutionally protected speech.[32][33][34]

The rights exercised in a typical audit are freedom of speech and freedom of the press in the First Amendment, freedom from unreasonable searches and seizures in the Fourth Amendment, and the right to remain silent in the Fifth Amendment of the United States Constitution.

Controversy

Intimidation

Auditing can be controversial due to the confrontational tactics of some auditors, which has been criticized as intimidation or harassment.[35] While filming in public is legal, such activity may cause some people to feel alarmed. Some auditors cite independent research into relevant laws, pointing out that they are currently being recorded by cameras in the building, or by stating that there is no expectation of privacy in public. Some Auditors will also engage in argumentative, harassing or outright aggressive behavior in order to solicit a reaction from government employees, especially Law Enforcement.[citation needed]

Goal

One auditor stated that the goal of an audit is to "put yourself in places where you know chances are the cops are going to be called. Are they going to uphold the constitution, uphold the law ... or break the law?"[36] Auditors state that they seek to educate the public that photography is not a crime, while publicizing cases where officers illegally stop what is perceived as illegal conduct.[37][38]

An auditor selects a public facility and then films the entire encounter with staff and customers alike. If no confrontation or attempt to stop the filming occurs, then the facility passes the audit;[39] if an employee attempts to stop a filming event, it fails the audit.[40]

In 2017, Justice Jacques Wiener of the U.S. Court of Appeals for the 5th Circuit wrote a federal appeals decision in favor of an auditor who was detained for filming police officers; "Filming the police contributes to the public's ability to hold the police accountable, ensure that police officers are not abusing their power, and make informed decisions about police policy."[6]

See also

References

  1. ^ "Photographers - What To Do If You Are Stopped Or Detained For Taking Photographs". American Civil Liberties Union. Retrieved 2019-02-19.
  2. ^ "First Amendment Audits and How to Respond • California Association of Labor Relations Officers". California Association of Labor Relations Officers. 2017-08-24. Retrieved 2019-02-19.
  3. ^ ""First Amendment Audits" Coming to Your Town?". CIRSA. 2018-06-18. Retrieved 2019-02-19.
  4. ^ "First Amendment videotaped audit of police leads to investigation". WS Chronicle. 2015-03-26. Retrieved 2019-02-19.
  5. ^ "Courting arrest for online clicks and the First Amendment - ExpressNews.com". expressnews.com. 2018-07-10. Retrieved 2019-01-22.
  6. ^ a b "What is 'auditing,' and why did a YouTuber get shot for doing it?". Washington Post. Retrieved 2019-02-16.
  7. ^ "They roam public buildings, making videos. Terrorism experts say they may be dangerous". kansascity. Retrieved 2019-01-22.
  8. ^ Cushing, Tim (August 5, 2014). "Documents Show 100 Officers From 28 Law Enforcement Agencies Accessed A Photographer's Records". Techdirt. Retrieved 2019-03-19.
  9. ^ "Alabama Cop Snatches Camera from Man Recording Police Station". Photography is Not a Crime. Retrieved 2019-03-19.
  10. ^ a b Sommer, Will (2019-01-24). "The Insane New Path to YouTube Fame: Taunt Cops and Film It". Retrieved 2019-03-11.
  11. ^ ""First Amendment auditor" claims sheriff deputy attacked him at Lebanon County courthouse - witf.org". witf.org. 2018-04-10.
  12. ^ "Viral video of Ohio police causes outrage, crashes phone line". WKBN. 14 March 2018.
  13. ^ Heinz, Frank. "Man Recording Police Files Complaint After Officer Draws Gun". NBC 5 Dallas-Fort Worth.
  14. ^ Panzar, Javier; Reyes-Velarde, Alejandra; Queally, James (15 February 2019). "YouTube personality 'Furry Potato' shot and wounded outside L.A. synagogue". Los Angeles Times. Retrieved 2019-02-17.
  15. ^ "How a team of YouTubers went to war with a Texas police chief". The Daily Dot. 2018-12-31. Retrieved 2019-02-16.
  16. ^ Roberts, Michael (2019-02-05). "See Boulder Jail Cops Bust Men for Taking Video on Public Sidewalk". Westword. Retrieved 2019-02-21.
  17. ^ "First Amendment Audits and How to Respond • California Association of Labor Relations Officers". 24 August 2017.
  18. ^ "You're on camera: How police should respond to a 'First Amendment audit'". PoliceOne.
  19. ^ "PROP Instructor's Guide" (PDF). theiacp.org. Retrieved 2019-02-16.
  20. ^ Sherwood, Trevor (2021-02-17). "Filming in Public: How should the police respond to UK Auditors? — Police Hour". Retrieved 2021-11-17.
  21. ^ Brinkworth, Alison (2021-08-16). "YouTuber gets police payout after stop and search for filming police station". Birmingham Live. Retrieved 2021-11-17.{{cite web}}: CS1 maint: url-status (link)
  22. ^ "Earl David Worden: Another Case of Videographers vs. the Police". Mimesis Law. 2017-02-21. Retrieved 2019-02-19.
  23. ^ WILLIAMS, SCOTT E. "GPD sergeant indicted in videographer's arrest". The Daily News. Retrieved 2019-02-19.
  24. ^ "It didn't have to be this way - The Wetumpka Herald". The Wetumpka Herald. 2016-06-12. Retrieved 2019-02-19.
  25. ^ "Glik v. Cunniffe". ACLU Massachusetts. 2015-06-21. Retrieved 2020-04-19.
  26. ^ https://cases.justia.com/federal/appellate-courts/ca7/11-1286/11-1286-2012-05-08.pdf?ts=1411041480 [bare URL PDF]
  27. ^ "ACLU v. Alvarez". ACLU of Illinois. 2011-01-05. Retrieved 2019-02-19.
  28. ^ "Public Recording of Police Activities; Instructor's Guide" (PDF). International Association of Chiefs of Police. Retrieved 2019-02-16.
  29. ^ "There Is a Constitutional Right of the Public to Film the Official Activities of Police Officers in a Public Place". Reason.com. 2017-12-17. Retrieved 2019-06-20.
  30. ^ "City of San Antonio Successfully Prosecutes Individual for Disrupting Police Officers during Course of Duty". The City of San Antonio - Official City Website. Retrieved 2019-03-11. "[R]epeated verbal attacks against us simply for wearing a uniform and performing our duties does not represent the spirit of the law," San Antonio Police Chief William McManus
  31. ^ Ramirez, Quixem (2019-03-06). "McManus: YouTubers confronting officers use first amendment as 'guise' to attack police". KTXS. Retrieved 2019-03-11.Caltabiano, David (2019-03-10). "Local YouTuber speaks out after conviction". WOAI. Retrieved 2019-03-11.
  32. ^ Denvir, Daniel. "Everyone Has the Right to Mouth Off to Cops". CityLab. Retrieved 2019-03-11.
  33. ^ "Court: First Amendment protects profanity against police". The Seattle Times. 2015-06-25. Retrieved 2019-03-11.
  34. ^ "Can You Be Arrested for Cursing at the Police?". The Reeves Law Group. 2017-11-25. Retrieved 2019-03-11.
  35. ^ Thomas, Judy L. "'First Amendment auditors' roam public buildings, making videos and raising fear". Journal Star. Retrieved 2019-11-27.
  36. ^ Mikelionis, Lukas (2019-02-16). "Online activists' 'First Amendment audits' -- patriotism or provocation?". Fox News. Retrieved 2019-02-19.
  37. ^ "Blind Justice escorted out of meeting by police in latest free speech test". 2019-02-05.
  38. ^ "Lawmaker Who Pushed Bill to Protect People Filming Police Arrested for Filming Police". The Intercept. 2016-09-30.
  39. ^ Peterson, Stephen. "Online group gives Foxboro Police Dept. high marks on preserving First Amendment rights". The Sun Chronicle. Retrieved 2019-11-14.{{cite web}}: CS1 maint: url-status (link)
  40. ^ "Candid Cameras: How to Respond to a First Amendment Audit". Wisconsin Department of Public Instruction. 2019-01-09. Archived from the original on 2019-07-09. Retrieved 2019-02-19.
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