You’ve probably seen one…………maybe you’ve encountered one: a First Amendment Auditor. A First Amendment Auditor is a person who asserts his/her rights under the First Amendment of the U.S. Constitution to film or photograph public employees in public places. A First Amendment Auditor visits government buildings, police stations, and other public areas to record interactions with public employees and tests whether the Auditor’s rights are respected.
The stated goal of many First Amendment Auditors is to promote transparency and accountability in government by ensuring that public employees’ respect citizens’ rights to freedom of speech, press, and assembly. The apparent goal of some First Amendment Auditors seems to be to provoke or bait public employees into violating the First Amendment. So how should a police officer respond when confronted with a First Amendment Auditor? Here are some tips and things to remember:
You should assume you are being recorded, at all times.
The public has a First Amendment right to audio and video record or photograph police in public.
Public spaces includes parks, beaches, streets, roadways, and buildings designated for public use.
The Fourth Amendment applies to seizures and searches of recording/photographing devices, which means that a warrant is usually required to search and/or seize such device.
Acknowledge the Auditor’s right to record you, but avoid lengthy conversations with the Auditor.
Advise the Auditor if he or she is doing something that is not permitted.
Direct the Auditor to a location that is a reasonable distance from the incident, but still allows the Auditor to record the incident.
Designate a reasonable police perimeter which applies to all individuals equally, not just the Auditor.
Importantly, arrests of individuals who are recording police activities must be based on factors that are unrelated to the act of recording. Recording the police does not, of itself, establish legal grounds for arrest, issuance of citations, or taking other actions to restrict such recordings.
In the age of social media and widely seen platforms like YouTube, every negative (in the eyes of the Auditor) interaction with police is shared instantly with a global audience. Where public perception is shaped by likes, shares, and comments, the more reasonable, calm, and patient you appear to be……….the better.
