First Amendment Audits

If you find yourself recorded while at work, you may be part of a “First Amendment Audit.”  A First Amendment Audit occurs when someone exercises their First Amendment rights to record in a public location.  The recording can be performed with a camera, a cellphone, or a similar device.  The recorder doesn’t have to represent anyone other than themself.  They do not need to represent the press, a company, or another entity.  They can record anywhere without reasonable expectation of privacy, like a district office, a park, a sidewalk, or a parking lot.

Not everyone records for the same reason, but a current trend is to test the government for violations of 1^st Amendment rights.  If an employee of the government “fails” the “test” by violating the recorder’s right to record in a public space, the video may be posted to social media to elicit views.  The more views the person gets, the more money they have the potential to collect.  There is also the potential of a claim being filed against the government entity, which has the possibility of paying out considerably more.

Here are some tips to help your district prepare for a First Amendment Audit:

• Plan ahead
  • Train/educate staff on the risk.
  • Discuss and/or role-play a First Amendment Audit to practice a coordinated response.
  • Provide a way for employees to ask for help and step away from the situation.
• Clearly designate with signs the areas that are not publicly accessible.
  • Example language for signs include the following;
    • “Employees Only Beyond this Point”
    • “Private Offices”
    • “Do Not Enter”
  • Things to do during a First Amendment Audit;
    • Continue to fulfill your role and answer work-related questions
    • Practice de-escalation techniques.
    • Take a step back and take a deep breath.
    • Control your tone and temperament.
    • Think “Kindness”.
    • Lock your computer.
    • Step away, if needed, to a place designated as a private area.
    • Ask for the help of a supervisor or other person designated by your district to help during a First Amendment Audit.

• Things to avoid during a First Amendment Audit;
  • DO NOT interact with the recorder except in the course of your regular governmental function.
  • DO NOT answer provocative questions.
  • DO NOT say you can’t record.
  • DO NOT take away their recording equipment.
  • DO NOT have someone removed because of a curse word.

Click on the resources below for more information about First Amendment Audits.

Velvet Bachman, Underwriting and Risk Management Associate

Resources:
Rights and Limits on Filming in Public Facilities
When First Amendment Rights and Public Meetings Clash
Troublesome Behavior:  Defending Against Harassment of Public Officials and Employees