By Tami Tanoue, General Counsel/Interim Executive Director

An interesting phenomenon known as the “First Amendment Audit” may be taking place in and around city/town halls and council chambers. Recently, one Colorado municipality agreed to pay a “First Amendment Auditor” $41,000 to settle a wrongful detention claim. You can read about the settlement, and see the “audit” video here.

The “First Amendment Audit” phenomenon doesn’t appear to be led by any particular organization, but rather, seems to be made up of individuals who are interested in making videos of their encounters with law enforcement officers or other public officials. If the encounter results in an actual or perceived violation of the auditor’s First Amendment or other protected rights, then the video likely will be posted on social media and/or serve as the basis for a claim or suit. A violation may come about 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 take place during public comment periods at governing body meetings. If the auditor is denied the right to speak on a particular topic during public comment, or to speak in a particular fashion, a First Amendment or other claim might result.

You can see the ACLU’s perspective on this here.

How to respond? Here are some thoughts:

• Law enforcement officers and other public officials must have a solid understanding of the First Amendment and other rights of citizens, and honor those rights at all times.
• One frequent flashpoint is the right of citizens to take audio and/or video in public places or during encounters with police or other public officials. This right is pretty well established in the laws of most jurisdictions. Denying that right, or treating someone exercising that right as engaging in “suspicious” or unlawful activity, is how a successful “First Amendment Audit” happens. Add the use of force or an arrest, and you’ve made someone’s day.
• Another flashpoint is public comment period during a governing body meeting. Some of the topics that citizens may want to bring up may seem unacceptable or irrelevant. But the governing body is the one that has welcomed the comments by establishing a public comment period. Subject matter restrictions on public comments are problematic. There are better ways to help ensure that public comment period is a civil and productive part of your meeting. You can read more about that here.

With the advent of social media and smartphone cameras, we’re all living in a fishbowl, but this is particularly the case for those in law enforcement or other public sector positions. We must be prepared for the possibility that video and/or audio of any given encounter could go “viral” around the world at any moment, and be prepared to respond appropriately. Is this too much to ask? I found one long-time law enforcement professional’s response to be particularly instructive:

Honestly, as a law enforcement professional for the past twenty years, I have seen my share of video cameras, and baiting of law enforcement. At no time have I felt a threat when someone with a camera was filming me, my police station, or anything to do with us as law enforcement. Remember, the audits are carefully planned to remain in a place that they can legally be, and there is no law about recording activity or buildings from a public place. They are well within their rights to do so, and from my experience, the best response to an audit roaming around your police station public areas is to ignore them. They eventually lose interest and move on to somewhere they can make headlines.¹

I think that’s the right perspective to take. Of course, it’s not always going to be easy to be under such public scrutiny, especially from those who may be hoping to record one or more missteps. But understanding that these kinds of “audits” may happen, remaining calm, and knowing and carrying out your legal responsibilities appropriately, will be your best response.

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1. Sgt. Ryan Brett, “First Amendment Audits and How to Respond,” https://calro.org/first-amendment-audits/