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If It’s Spring It Must Be First Amendment Audit Season

If It’s Spring It Must Be First Amendment Audit Season

By: Tami Tanoue, CIRSA Executive Director

We’re seeing a trend of citizens visiting City or Town offices while on a video livestream. These visits might fall under the category of “First Amendment audits.”  The purpose of these visits might be a perfectly legitimate request for a service, such as obtaining a form or making an open records act request. Or it may be for the also-legitimate purpose of simply exercising one’s First Amendment rights and “testing” municipal personnel. But if the visit prompts an employee into making an embarrassing and/or otherwise problematic gaffe, that may be a click-worthy bonus from the standpoint of the video-taker. And if something bad happens, like an unwarranted arrest, then someone may be seeing litigation and dollar signs in their future.

You can see a recent example of such a visit that one of our members received the other day here, and a few more here, here and here. Overall, we’re proud of our members for how these particular visits unfolded! The video-taker was allowed to complete his business without interference in each case. In one case, a member of the City staff was even complimented; in another, the police officers sought to educate and inform a citizen who was upset about the videotaping. In others, the City Manager welcomed the video-takers for a cordial, on-camera chat, and the Police Chief greeted them and walked away.

But keep in mind these important points:

  1. City or Town Hall is a public space, at least those areas that are open to the public. “This is private property” is not an accurate description of City or Town Hall! If there are areas of the building where the public shouldn’t be, then those areas shouldn’t be accessible to members of the public; non-public areas need to be secured and it’s best to have them marked that way—e.g., “employees only,” etc. A First Amendment visit is not the first time to tell someone “You can’t go there” if the area has been otherwise open to public visitors.
  2. If someone’s in a public space, they don’t need consent to take video there, nor do they need to state their name or explain what their purpose is. So, if someone’s roaming the public areas in City or Town Hall with a camera or phone in hand, let them have at it.
  3. But, but, you say, there may be sensitive or confidential information that could be inadvertently captured on video. Yes, but see Point 1 above. The solution is to secure that information so that it’s not within public view by video or otherwise. It is not to prohibit video recording. You’ll note in one of the videos that an employee was working on a document that was in full view of the video-taker. If it had been sensitive or confidential information, it would have been the City’s responsibility to ensure it was not viewable.
  4. Certainly there are some areas of City or Town Hall where recording would be unduly disruptive. One example might be the courtroom when Municipal Court is in session. If so, the area should be posted with “no recording” requirements that have been duly adopted by the Municipal Judge.
  5. If you, Mr. or Ms. Municipal Official or Employee, are in a public area of City of Town Hall, you’re also subject to being captured on video. Your consent is not required! Sure, this may be uncomfortable. But it beats being embarrassed (or worse) because you incorrectly uttered something like “You can’t record me without my consent!”
  6. What if the situation is getting disruptive? Well, be sure to sort out where the disruption is coming from! Most of the time, the video-takers are careful not to cross the line into disruptive behavior themselves. Don’t attribute to the video-taker the disruptive response of someone who objects to being videotaped, and don’t contribute to the escalation of the situation.
  7. Far be it from us to suggest that a video-taker might behave less than impeccably during one of these visits. But it’s not out of the realm of possibility that some goading, name-calling, insults, or even profanity might happen. Don’t take the bait! Certainly, you don’t have to continue to subject yourself to obstreperous behavior, should it start. But, to avoid that, the better course is to remove yourself from the situation, and ask for assistance from your supervisor or manager in dealing with it.
  8. Certainly, municipal governments are rightfully concerned about the security of their buildings, the personnel who work in them, and the citizens they serve. As the recent tragedy in the City of Virginia Beach reminds us, municipal buildings are not exempt from the deadly violence that plagues our workplaces, schools, and gathering spots. But let’s not misdirect our concerns at the First Amendment video-takers. They are not the problem, and trying to suppress them is not the solution. The CIRSA Loss Control Department is available to help you take the proper steps to ensure that you are maximizing building security.

The prospect of a “First Amendment Audit” is stressful, to be sure. No one shows up for work at City or Town Hall thinking they might be starring in a YouTube video today, and few of us would relish such a prospect. Do your best to remain calm, avoid the missteps described above, and call on a supervisor for assistance. And watch and learn from these and other videos so that you can be prepared for the possibility that a “First Amendment Audit” could happen in your City or Town Hall.

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