Editor’s Note: Please enjoy our guidance from the September 2019 issue concerning First Amendment Audit best practices.
There is a well-established right, protected by the First Amendment, to film government officials engaged in their duties in a public place. Glik v. Cunniffe, 655 F.3d 78, 82 (1st Cir. 2011). Pursuant to that right, you may soon have visitors appear at your Town or City Hall, or perhaps your public library, and begin videotaping throughout the space.
The videographers call themselves “First Amendment Auditors.” They make and then post their videos on YouTube and seek to gain followers by recording confrontation that will get them views. Sometimes, if an arrest occurs, they will return with other “Auditor” groups with the hope of provoking more confrontations.
Courts generally recognize the ability of governments to regulate the time, place, and manner of constitutionally protected activity in traditional public fora and somewhat greater regulatory flexibility for designated or limited public fora. E.g., Roman v. Trustees of Tufts College, 461 Mass. 707, 714 (2012). With respect to time, there is not much doubt that governments can limit the hours during which a public building is open to the public. Nor is there much disagreement that only public places within government buildings can be accessed and videotaped. But it is not always easy to define what constitutes a public place for determining what level of regulation of public activity is permitted. There is not much case law on specific places within public buildings since most cases of videotaping involve police officers effectuating arrests, but a state trial court, in the course of dismissing a criminal charge against a photographer, accepted the hallway of a district court to be a public place. Finally, the right to regulate the manner of protected activity means that you may require that videotaping not interfere with the primary governmental nature and use of the building.
So what can you do? Ideally you would want a designated person to greet the Auditors as soon as staff becomes aware that they are on site. The staff person would then guide the videographers to the public areas of the building. Employees can be advised that, if they are uncomfortable being videotaped, they can leave their desks until the videographers move on. You can secure or post non-public areas so that members of the public are lawfully excluded.
In general, communities have had better luck dealing with these Auditors if they do so in a non-confrontational manner. You are less likely to have them return if they do not experience a dramatic exchange.
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