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, in particular the right to photograph and video record in a public space (a right normally covered by the First Amendment).[1][2] Auditors have tended to film or photograph government buildings, equipment, access control points as well as any personnel present.[3]

Auditors believe that the movement promotes transparency and open government, while critics have argued that audits are typically confrontational, criticizing some tactics as forms of intimidation and harassment. Many opponents of the tactics and legal understandings of auditors refer to auditors as "frauditors".[4]

The practice is predominantly a US concept, but it has also been seen in other countries, including Australia, the United Kingdom,[5][6] Canada, and Russia.[7]

Procedure[edit]

Auditors typically travel to places considered public property, such as sidewalks or public right-of-ways, or places open to the public, such as post offices, police stations, public libraries[8] or other government buildings, and visibly and openly photograph and record buildings and persons in their view.[9][10]

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. Auditors of course have no official authority to "audit" anything, but do have theoretical constitutional rights to record from open public spaces. The laws regarding public forums come into play in these situations, and are often the flashpoint of contention. 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 their 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.[11][12]

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;[13] if an employee attempts to stop a filming event, it "fails" the audit.[14]

Purpose[edit]

In a 2019 Fox News article, 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?"[15] Auditors state that they seek to educate the public that photography is not a crime by publicizing cases where officers illegally stop what is perceived as illegal conduct.[16][17]

Online videos of audits can also generate income for auditors through advertising revenue and donations.[3] Many critics of auditors point out that many auditors make substantial amounts of money from their channels on social media platforms such as Youtube and TikTok, with some of the more popular channels on YouTube making over $150,000.00 a year. Critics argue this provides a huge incentive for auditors to be confrontational and abusive, and is the true motive for their activities rather than any free speech or other first amendment activism.

Reactions[edit]

Government response[edit]

Auditors have been detained, arrested, assaulted, had camera equipment confiscated, weapons aimed at them, their homes raided by a SWAT team, and have been shot while video recording in a public place.[18][19][20][21][22][23] Such events have prompted police officials to release information on the proper methods of handling such an activity.[24][25] For example, a document sponsored by the International Association of Chiefs of Police (IACP) states that the use of a recording device alone is not grounds for arrest, unless other laws are violated.[26]

Support[edit]

Auditors believe that the movement promotes transparency and open government.[27] They argue that auditing raises awareness of police misconduct and pressures government agencies to train their employees to respect First Amendment rights.[10]

Criticism[edit]

Auditing has been controversial due to the tactics auditors have used in attempting to elicit potential reactions from police officers and private citizens alike. Many of these tactics have been criticized as they include the use of intimidation, harassment and even criminal instigation.

Critics argue that audits are often confrontational in nature, as auditors often refuse to self-identify or explain their activities.[28][29] Some auditors yell insults, derogatory language, and vulgarities at police officers who attempt to stop them from recording and insist on identification.[3]

Some auditors[30][31] have also been known to enter public buildings asserting that they have a legal right to openly carry firearms (a right covered by the Second Amendment, not the First), leading to accusations that auditors are engaged in intimidation, harassment and domestic terrorism. While not all are members of the sovereign citizen movement, a number are either members or express certain philosophies shared by these anarchic oriented groups.[32][33][34]

Critics have also noted that many auditors profit from the videos they publish on YouTube and other platforms. According to a report by The Daily Beast, the growing popularity of auditing videos online has led to "ruthless competition" between auditors, which incentivizes more dramatic, confrontational and abusive videos.[3]

Legal status in the United States[edit]

The rights cited typically in audits 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.

Public recording[edit]

The legality of recording police in public was first clearly established in a United States jurisdiction following the case of Glik v. Cunniffe in the First Circuit,[35] which confirmed that restricting a person's right to film in public would violate their First and Fourth amendment rights. Though the Supreme Court has yet to affirm a right to record government employees, it has stated that there is a "paramount public interest in a free flow of information to the people concerning public officials."[36] 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."[37][38]

Bystanders may object to being filmed in public, but courts have generally held that when people are in public spaces they do not have a reasonable expectation that they will not be recorded on video. There are, however, some limitations to this such as mental health and juvenile probation facilities. It is a violation of one's publicity rights to record people and use their name, likeness or image without written permission from each person in the video if that video is used to produce profit of any kind.[39]

Legal cases[edit]

While the U.S. Supreme Court has yet to decide on a case regarding a right to film government officials engaged in public duties, several of the U.S. Courts of Appeals have ruled that the recording of public officials, including the police, is protected under the First Amendment.[40][41] In 2017, Judge 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."[29] In 2022, the U.S. Court of Appeals for the 10th Circuit delivered a decision in favor of an auditor on similar grounds, holding in the case of Irizarry v Yehia that "Based on First Amendment principles and relevant precedents, we conclude there is a First Amendment right to film the police performing their duties in public."[42] Following this ruling, the right to film police performing their duties in public is now expressly recognized under the First Amendment in at least the 32 states covered by the 1st, 3rd, 5th, 7th, 9th, 10th, and 11th Circuit Federal Court of Appeals.[41][43]

Numerous court cases have also ruled that filming protections are subject to time, place, and manner restrictions, including in the majority of public buildings. Limitations include trespassing on private property, entering a marked crime scene, or materially interfering with police activities.[40][44]

Insults[edit]

Insulting the police is consistently treated as constitutionally protected speech.[45][46] According to a guide published by the IACP, "verbal criticism and derisive comments made by recording parties or others from a location that has no direct impact on police operations or safety are not actionable by themselves."[44]

An auditor in San Antonio was prosecuted and convicted of disorderly conduct after an audit where he "chased, jostled and shouted insults at three officers on duty".[47] 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 and verbally attacking police officers".[48]

See also[edit]

References[edit]

  1. ^ "First Amendment Audits and How to Respond • California Association of Labor Relations Officers". California Association of Labor Relations Officers. 2017-08-24. Archived from the original on 2019-01-24. Retrieved 2019-02-19.
  2. ^ ""First Amendment Audits" Coming to Your Town?". CIRSA. 2018-06-18. Retrieved 2019-02-19.
  3. ^ a b c d Sommer, Will (2019-01-24). "The Insane New Path to YouTube Fame: Taunt Cops and Film It". Retrieved 2019-03-11.
  4. ^ Rubin, Sara (2023-05-18). "A group who claims to care about free speech harasses the Weekly". Monterey County Weekly. Retrieved 2023-12-10.
  5. ^ Sherwood, Trevor (2021-02-17). "Filming in Public: How should the police respond to UK Auditors? — Police Hour". Archived from the original on 2021-11-17. Retrieved 2021-11-17.
  6. ^ Brinkworth, Alison (2021-08-16). "YouTuber gets police payout after stop and search for filming police station". Birmingham Live. Retrieved 2021-11-17.
  7. ^ "Блогер MrRissso снял провокационное видео с рязанскими гаишниками". YA62.RU. October 14, 2019. Archived from the original on August 15, 2020.{{cite web}}: CS1 maint: unfit URL (link)
  8. ^ "Uptick in First Amendment Audits". American Libraries Magazine. 2022-01-03. Retrieved 2023-01-08.
  9. ^ "Earl David Worden: Another Case of Videographers vs. the Police". Mimesis Law. 2017-02-21. Retrieved 2019-02-19.
  10. ^ a b "Cop-watchers are now YouTube celebrities. They've changed how police work". Washington Post. 2023-08-07. Retrieved 2023-12-10.
  11. ^ WILLIAMS, SCOTT E. (13 February 2016). "GPD sergeant indicted in videographer's arrest". The Daily News. Retrieved 2019-02-19.
  12. ^ "It didn't have to be this way - The Wetumpka Herald". The Wetumpka Herald. 2016-06-12. Retrieved 2019-02-19.
  13. ^ Peterson, Stephen (20 October 2019). "Online group gives Foxboro Police Dept. high marks on preserving First Amendment rights". The Sun Chronicle. Retrieved 2019-11-14.
  14. ^ "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.
  15. ^ Mikelionis, Lukas (2019-02-16). "Online activists' 'First Amendment audits' -- patriotism or provocation?". Fox News. Retrieved 2019-02-19.
  16. ^ "Blind Justice escorted out of meeting by police in latest free speech test". 2019-02-05.
  17. ^ "Lawmaker Who Pushed Bill to Protect People Filming Police Arrested for Filming Police". The Intercept. 2016-09-30.
  18. ^ ""First Amendment auditor" claims sheriff deputy attacked him at Lebanon County courthouse - witf.org". witf.org. 2018-04-10. Archived from the original on 2018-09-13. Retrieved 2018-09-12.
  19. ^ "Viral video of Ohio police causes outrage, crashes phone line". WKBN. 14 March 2018.
  20. ^ Heinz, Frank (6 February 2018). "Man Recording Police Files Complaint After Officer Draws Gun". NBC 5 Dallas-Fort Worth.
  21. ^ 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.
  22. ^ "How a team of YouTubers went to war with a Texas police chief". The Daily Dot. 2018-12-31. Retrieved 2019-02-16.
  23. ^ Roberts, Michael (2019-02-05). "See Boulder Jail Cops Bust Men for Taking Video on Public Sidewalk". Westword. Retrieved 2019-02-21.
  24. ^ "First Amendment Audits and How to Respond • California Association of Labor Relations Officers". 24 August 2017.
  25. ^ "You're on camera: How police should respond to a 'First Amendment audit'". PoliceOne.
  26. ^ "PROP Instructor's Guide" (PDF). theiacp.org. Retrieved 2019-02-16.
  27. ^ "First Amendment videotaped audit of police leads to investigation". WS Chronicle. 2015-03-26. Archived from the original on 2019-01-16. Retrieved 2019-02-19.
  28. ^ "Courting arrest for online clicks and the First Amendment - ExpressNews.com". expressnews.com. 2018-07-10. Retrieved 2019-01-22.
  29. ^ a b "What is 'auditing,' and why did a YouTuber get shot for doing it?". Washington Post. Retrieved 2019-02-16.
  30. ^ https://taskandpurpose.com/news/2-men-entered-police-station-rifle-audit-response/ Story about second amendment auditors who behaved the same essential way.
  31. ^ https://www.freep.com/story/news/local/michigan/2021/11/09/michigan-first-amendment-auditors-video-public-buildings/6350167001/ Fifth paragraph of story.
  32. ^ "They roam public buildings, making videos. Terrorism experts say they may be dangerous". kansascity. Retrieved 2019-01-22.
  33. ^ Cushing, Tim (August 5, 2014). "Documents Show 100 Officers From 28 Law Enforcement Agencies Accessed A Photographer's Records". Techdirt. Retrieved 2019-03-19.
  34. ^ "Alabama Cop Snatches Camera from Man Recording Police Station". Photography is Not a Crime. Retrieved 2019-03-19.
  35. ^ "Glik v. Cunniffe". ACLU Massachusetts. 2015-06-21. Retrieved 2020-04-19.
  36. ^ Nickodem, Kristi; Wilson, Kristina (November 9, 2022). "Responding to First Amendment "Audits" in the Local Government Context" (PDF). Local Government Law Bulletin (141): 4.
  37. ^ https://cases.justia.com/federal/appellate-courts/ca7/11-1286/11-1286-2012-05-08.pdf?ts=1411041480[bare URL PDF]
  38. ^ "ACLU v. Alvarez". ACLU of Illinois. 2011-01-05. Retrieved 2019-02-19.
  39. ^ "Misappropriation". The Free Speech Center. Retrieved 2023-12-10.
  40. ^ a b Nickodem, Kristi (2022-11-14). "Responding to First Amendment Audits: Is Filming Protected by the First Amendment?". Coates’ Canons NC Local Government Law. Retrieved 2023-12-10.
  41. ^ a b "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.
  42. ^ "Right to Videorecord Police Clearly Established, Violated by Blocking Camera and Shining Light Into It". Reason.com. 2022-07-11. Retrieved 2023-09-25.
  43. ^ Sibilla, Nick. "First Amendment Protects The Right To Film Cops, Federal Court Reaffirms". Forbes. Retrieved 2023-09-25.
  44. ^ a b "Public Recording of Police Activities; Instructor's Guide" (PDF). International Association of Chiefs of Police. Retrieved 2019-02-16.
  45. ^ Denvir, Daniel (24 July 2015). "Everyone Has the Right to Mouth Off to Cops". Bloomberg. Retrieved 2019-03-11.
  46. ^ "Court: First Amendment protects profanity against police". The Seattle Times. 2015-06-25. Retrieved 2019-03-11.
  47. ^ "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
  48. ^ 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.