First Amendment audit

Thumbnail of a First Amendment audit video on YouTube

First Amendment audits are a largely American social movement that usually involves photographing or filming from a public space. It is often categorized by its practitioners, known as auditors, as activism and citizen journalism that tests constitutional rights, in particular the right to photograph and video record in a public space (a right normally covered by the First Amendment). Auditors have tended to film or photograph government buildings, equipment, and access control points, as well as any personnel present.

Auditors believe that the movement promotes transparency and open government, while critics have argued that audits are typically confrontational, criticizing some tactics as forms of intimidation and harassment. Many opponents of the tactics and legal theories of auditors refer to auditors as "frauditors".

The practice is predominantly a US concept (since the First Amendment is a part of US law), but it has also been seen in other countries, including Australia, the United Kingdom, Canada, and Russia.

Procedure

Self-styled Auditors typically travel to places considered public property, such as sidewalks or public right-of-ways, or places open to the public, such as post offices, police stations, public libraries or other government buildings, and visibly and openly photograph and record buildings and persons in their view.

In the case of sidewalk or easement audits, the conflict arises when a property owner or manager states, in substance, that photography of their property is not allowed. Auditors have constitutional rights to record from open public spaces, as there is no reasonable expectation of privacy while in public spaces. The laws regarding public forums come into play in these situations, and are often the flashpoint of contention. Sometimes, auditors will tell property owners upon questioning that they are photographing or recording for a story, they are photographing or recording for their "personal use", or sometimes auditors do not answer questions. Frequently, local law enforcement is called and the auditor is sometimes reported as a suspicious person and are often also identified as having been on private property. Some officers will approach the auditors and request their identification and an explanation of their conduct. Auditors refusing to identify sometimes results in officers arresting auditors for obstruction of justice, disorderly conduct, or other crimes.

An auditor selects a public facility and then films the entire encounter with staff and customers alike. If no confrontation or attempt to stop the filming occurs, then the facility "passes" the audit; if an employee attempts to stop a filming event, it "fails" the audit.

Purpose

In a 2019 Fox News article, one auditor stated that the goal of an audit is to "put yourself in places where you know chances are the cops are going to be called. Are they going to uphold the constitution, uphold the law ... or break the law?" Auditors state that they seek to educate the public that photography is not a crime by publicizing cases where officers illegally stop what is perceived as illegal conduct.

Online videos of audits can also generate income for auditors through advertising revenue and donations.

Reactions

Government response

Auditors have been detained, arrested, assaulted, had camera equipment confiscated, weapons aimed at them, their homes raided by a SWAT team, and have been shot while video recording in a public place. Such events have prompted police officials to release information on the proper methods of handling such an activity. For example, a document sponsored by the International Association of Chiefs of Police (IACP) states that the use of a recording device alone is not grounds for arrest, unless other laws are violated.

Support

Auditors believe that the movement promotes transparency and open government. They argue that auditing raises awareness of police misconduct and pressures government agencies to train their employees to respect First Amendment rights.

Criticism

Auditing has been controversial due to the tactics auditors have used in attempting to elicit potential reactions from police officers and private citizens alike. Many of these tactics have been criticized as they include the use of intimidation, harassment and even criminal instigation.

Critics argue that audits are often confrontational in nature, as auditors often refuse to self-identify or explain their activities. Some auditors yell insults, derogatory language, and vulgarities at police officers who attempt to stop them from recording and insist on identification.

Some auditors have also been known to enter public buildings asserting that they have a legal right to openly carry firearms (a right covered by the Second Amendment, not the First), leading to accusations that auditors are engaged in intimidation, harassment and domestic terrorism. While not all are members of the sovereign citizen movement, a number are either members or express certain philosophies shared by these anarchic oriented groups.

Critics have also noted that many auditors profit from the videos they publish on YouTube and other platforms. According to a report by The Daily Beast, the growing popularity of auditing videos online has led to "ruthless competition" between auditors, which incentivizes more dramatic, confrontational and abusive videos.

Legal status in the United States

The rights cited typically in audits are freedom of speech and freedom of the press in the First Amendment, freedom from unreasonable searches and seizures in the Fourth Amendment, and the right to remain silent in the Fifth Amendment of the United States Constitution.

Public recording

The legality of recording police in public was first clearly established in a United States jurisdiction following the case of Glik v. Cunniffe in the First Circuit, which confirmed that restricting a person's right to film in public would violate their First and Fourth amendment rights. Though the Supreme Court has yet to affirm a right to record government employees, it has stated that there is a "paramount public interest in a free flow of information to the people concerning public officials." As the 7th Circuit Federal Court of Appeals explained in ACLU v. Alvarez, "[t]he act of making an audio or audiovisual recording is necessarily included within the First Amendment's guarantee of speech and press rights as a corollary of the right to disseminate the resulting recording. The right to publish or broadcast an audio or audiovisual recording would be insecure, or largely ineffective, if the antecedent act of making the recording is wholly unprotected."

Bystanders may object to being filmed in public, but courts have generally held that when people are in public spaces they do not have a reasonable expectation that they will not be recorded on video. There are, however, some limitations to this such as mental health, correctional and juvenile probation facilities. It is a violation of one's publicity rights to record people and use their name, likeness or image without written permission from each person in the video if that video is used to produce profit of any kind.

Legal cases

While the U.S. Supreme Court has yet to decide on a case regarding a right to film government officials engaged in public duties, several of the U.S. Courts of Appeals have ruled that the recording of public officials, including the police, is protected under the First Amendment. In 2017, Judge Jacques Wiener of the U.S. Court of Appeals for the 5th Circuit wrote a federal appeals decision in favor of an auditor who was detained for filming police officers; "Filming the police contributes to the public's ability to hold the police accountable, ensure that police officers are not abusing their power, and make informed decisions about police policy." In 2022, the U.S. Court of Appeals for the 10th Circuit delivered a decision in favor of an auditor on similar grounds, holding in the case of Irizarry v Yehia that "Based on First Amendment principles and relevant precedents, we conclude there is a First Amendment right to film the police performing their duties in public." Following this ruling, the right to film police performing their duties in public is now expressly recognized under the First Amendment in at least the 32 states covered by the 1st, 3rd, 5th, 7th, 9th, 10th, and 11th Circuit Federal Courts of Appeal.

However, many auditors who have been arrested have been arrested for related crimes, including felony harassment of those they are recording, obstructing and interfering with police officers, loitering, trespass and defiant trespass (depending on the jurisdiction) and failure to identify themselves. Most of these cases have been upheld in both the courts of original jurisdiction and on appeal. First Amendment Auditor Hoyt Webb, of Coeur d’Alene, Idaho, was arrested for the shooting of a homeless man armed with a cup of coffee while apparently engaged in a first amendment audit after the homeless man approached him. HIs own audit video was used against him. Webb was later sentenced to 39 months in prison for the assault.

The United States v. Christopher J. Cordova

In the 2022 case of United States vs. Cordova first amendment auditor Christopher J. Cordova, operating under the YouTube channel name "Denver Metro Audits", was convicted on two counts in the Denver Division of the Federal District Court of Colorado. The case was heard by the Honorable Chief Magistrate Judge Michael E. Hegarty, Chief Magistrate Judge of the Federal District of Colorado.

Specifically, Mr. Cordova was convicted of "failure to comply with official signs and lawful directions (in violation of Case No. 1:22-po-07015-MEH Document 23 filed 07/07/23 USDC Colorado pg 1 of 11 2 41 C.F.R. § 102.74-385) and unlawful photography (in violation of 41 C.F.R. § 102.74-420)." He was sentenced to 15 days in the custody of the Federal Bureau of Prisons, 2 years probation, and a $3,000.00 fine. He was also required to obtain and maintain full time employment and refrain from any recording.

Mr. Cordova appealed the verdict and sentence, and the appeal was heard on June 6, 2024. The appeals court issued its decision in October of 2024, and denied all aspects of the appeal, remanding the case back to the trial court for imposition of sentence. The denial of the appeal also established firm case law that prohibits the use of any recording devices on federal property without the permission of the controlling agency of that property, which correlates with the legal principle of property of another. which establishes that even if a person is a taxpayer and those paid taxes help pay for government property or other resources, that does not give any individual taxpayer any authority of entry, occupancy or administration over that property; that authority resides with the controlling government agency. In the Cordova case that agency is the Social Security Administration, which had sole authority to establish the time, place and manner of the conditions of use.

Mr. Cordova reported for incarceration on October 22, 2024 to serve his 15 days in federal custody, which was served in the Denver County Jail in Denver, Colorado.

Time, place and manner restrictions

Numerous court cases, most notably the case of Glik v. Cunniffe, have also ruled that filming protections are subject to time, place, and manner restrictions, including in the majority of public buildings. Limitations include trespassing on private property, entering a marked crime scene, or materially interfering with police activities. The United States Supreme Court case of Grayned v. City of Rockford (1972) clarifies and defines the parameters of time, place, and manner restrictions and is often cited when removing First Amendment auditors who are in violation of its guidelines. Conversely, it is also cited when protecting First Amendment auditors who are acting within its parameters.

Insults

While insulting the police is usually treated as constitutionally protected speech, in some jurisdictions it can be considered disorderly conduct, and if it interferes with a police interaction can also lead to charges of obstructing police or interfering with police in the performance of their duties. According to a guide published by the IACP, "verbal criticism and derisive comments made by recording parties or others from a location that has no direct impact on police operations or safety are not actionable by themselves."

An auditor in San Antonio was prosecuted and convicted of disorderly conduct after an audit where he "chased, jostled and shouted insults at three officers on duty". After the trial, the Chief of Police for the City of San Antonio stated "[the verdict] puts a dagger in the heart of their First Amendment excuse and verbally attacking police officers".

See also

• Photography Is Not a Crime
• Copwatch