First Amendment “Audits”: What Are They and How Do You Handle One?

The information contained in this article is not intended as legal advice and may no longer be accurate due to changes in the law. Consult NHMA's legal services or your municipal attorney.

Recently, towns across New Hampshire (and the country) have begun experiencing a new, unsettling type of encounter with members of the public that has increasingly caused confusion, irritation, and even court battles and the resulting payment of money damages. This interaction is called the “First Amendment audit.” First Amendment audits are an American social and political movement that usually involves filming from a public space. A First Amendment audit occurs when individuals “exercise” their First Amendment right to video record in public spaces like town halls, libraries, police stations, and parking lots. “Auditors” will wander around, either individually or in groups, filming, provoking employees and officials, and interfering with employees’ ability to conduct town business. The goal of these interactions is to provoke public officials or employees into violating the First Amendment. A “successful” audit occurs when the person recording is treated the same as if they were not recording. (But let us be clear: nothing about their behavior is normal, and so it is hard to treat auditors as if they were not recording.) A “failed” audit involves confrontations with public officials or employees, where the auditor is told to stop recording, threatened with arrest, or removed from the property. Failed audits can result in liability for the municipality.

First Amendment audits have become a significant source of income for auditors. Auditors get paid by posting their videos online, primarily on YouTube, where they request and receive donations from “subscribers” to help fund their “work.” The more inflamed the interaction, the more views they get and the more money they make. To make matters worse, auditors compete with each other for views and money, which further incentivizes them to engage in highly confrontational behavior to provoke an even greater negative response from town officials and employees.  All of these interactions are video recorded, and the worst of them have been viewed tens or even hundreds of thousands of times.

The First Amendment of the United States Constitution says: “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” This applies to all fifty states and their political subdivisions through the Fourteenth Amendment. The New Hampshire Constitution, Article 22, says: “[f]ree speech and Liberty of the press are essential to the security of Freedom in a State: They ought, therefore, to be inviolably preserved.”

In analyzing the freedom to record in public spaces under the First Amendment, courts have said the right of the press and the freedom of speech are what allows the public to record in governmental buildings. The First Circuit Court of Appeals has said that “[t]he First Amendment protects the right to gather information about what public officials do on public property, and specifically, a right to record matters of public interest.”  Smith v. City of Cumming, 212 F.3d 1332 (11th Cir. 2000). The Court has also said, however, that “the right to film is not without limitations. It may be subject to reasonable time, place, and manner restrictions.” Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011).

While auditors may have a right to record public officials engaged in their official duties on public property, this does not mean they can record anywhere at all in a public building. Auditors do not have a right to record, and municipalities can prohibit recording, in employee offices, cubicles, or workspaces which are out of the public eye; non-public areas of town hall (where the public is generally not permitted un-escorted); public restrooms; and at posted town properties where the public is generally not permitted, such as a wastewater treatment plant.

Auditors do have a right to record, however, in town hall public parking areas and in lobbies, hallways, and waiting areas of the town hall or other town buildings. If they are in a public parking area, they have the right to record inside vehicles within that parking area – an auditor can record whatever the naked eye can see if a person walked by a vehicle and looked inside. And auditors can record their interactions with government employees and officials in public spaces. They do not need consent to record public employees and officials in a public area. They can also record from a public area into a visible, non-public area, such as into the Town Clerk’s desk. (Though they are not within their rights to use the “zoom” function on their cameras to get a close-up image of documents that the general public could not see with the naked eye.)

Perhaps unexpectedly, they can also record other “customers” in those areas, and they are allowed to record the audio of those conversations between public officials and customers if those conversations could be heard by others in the area. Customers having loud, easily audible conversations with public officials in public areas do not have an expectation of privacy in those conversations, and therefore they may be recorded. It is important to note, however, that the auditors cannot use any magnification to capture otherwise inaudible, low-volume conversations. Customers do have a right to privacy in the personal facts they must disclose to receive governmental services. If a customer is uncomfortable being video recorded, the public employee assisting them may bring them to a restricted area to complete their business, or may assist them at a different time.

Auditors cannot, of course, violate the law in their audit activities. Auditors may not trespass into non-public spaces. They also may not be unreasonably disruptive to an employee’s ability to conduct their official business or serve other residents’ needs. If an auditor becomes unreasonably disruptive or prevents other customers from being served, they can be asked to leave; if they refuse to leave, they can be escorted out at that point. Note, however, that an auditor may be annoying, distracting, and unsettling, but the mere presence of an auditor in a public space is not unreasonably disruptive. If an auditor becomes belligerent, obtrusive, argumentative, and prevents employees from doing their work for an extended amount of time, however, this is grounds for requesting that they leave or removing them.   Often, auditors are well aware of these limitations and will not saying anything at all, but will instead just stand and video people and public areas for an extending period of time, with the goal of making people uncomfortable and triggering a response that violates the First Amendment.

There are several things municipalities can do to prepare for a First Amendment audit. First, and most importantly, municipalities should train their officials and employees on how to engage with a First Amendment auditor, and what to do during a First Amendment audit. Municipalities should consider designating one or two people who are more comfortable dealing with these auditors and being filmed, so that if an auditor shows up, the designated person can be called to interact with them. In addition, municipalities should clearly mark which areas of municipal buildings are not public areas. Mark the doors or cordoned areas “employee only” or “this area is not open to the public.” Ensure that any confidential or non-public information is never visible from public areas. Computer screens should be turned so as to not enable viewing from public areas. Confidential papers and files should be covered or stored away at all times. Town officials should also consider having commonly-requested documents “at the ready” for auditors who may be seeking public documents, like the latest meeting minutes, board agendas, or certain policies and procedures; this will help the interaction run more smoothly and may shorten the duration of the audit.

During a First Amendment audit, employees and officials should be welcoming, friendly, and helpful. This behavior will prevent escalation and will also likely shorten the encounter. Auditors make money from negative reactions by public officials and employees. To that end, auditors may be condescending, rude, and insulting. Employees should go into an audit knowing this, and should refuse to rise to the bait. Questions should be answered calmly. If the encounter becomes lengthy, employees should let them know that they need to return to their work or assist other residents/customers, and then resume their work or turn to the next customer. If an employee is frustrated and upset, the employee should take a break in a restricted area (even a bathroom will do). If an auditor arrives at a town hall to welcoming, calm, and unruffled employees, they may never return.

This is not a legal document nor is it intended to serve as legal advice or a legal opinion.  Drummond Woodsum & MacMahon, P.A. makes no representations that this is a complete or final description or procedure that would ensure legal compliance and does not intend that the reader should rely on it as such.