By Todd Duncan, Law Enforcement and Safety Specialist
What is the First Amendment?
The First Amendment to the U.S. Constitution protects citizens’ freedom of speech, religion, press, assembly, and the right to petition the government. The First Amendment was intended to prevent the government from placing limits on citizens’ freedom of expression. As a county employee, you are a government representative and therefore have a duty to honor the constitutional rights of citizens, including those afforded by the First Amendment.
Who are First Amendment Auditors?
First Amendment auditors are citizens who visit government facilities or approach government employees, typically in public areas, to test government employees on their knowledge of the First Amendment. They typically have recording equipment such as video cameras, may travel alone or in groups, and often approach government employees in a way that is intended to trigger a negative reaction. First Amendment auditors frequently sue governments/government employees alleging violation of their constitutional rights. Some auditors also post their videos of encounters with government employees, especially law enforcement, on popular social media platforms in an effort to discredit government employees and generate income.
What are the Risks?
Lawsuits alleging First Amendment violations can be very costly. In 2012, an attorney arrested for using his cellphone to record police officers while they arrested a man in public received a $170,000 settlement for damages and legal fees (Glik v. Cunniffe, 2012). In 2021, the City of Colorado Springs agreed to a $41,000 settlement after Terrell Clayton was detained by police while he was observed filming marked police cars outside the police station. These are just two examples where local government agencies have paid large settlements as the result of alleged First Amendment violations.
It is imperative that government employees understand the First Amendment and honor the constitutional rights of all citizens, whether they are acting as individuals, auditors, activists, members of the press, or in any other capacity.
Are There Limits to What First Amendment Auditors Can Do?
While First Amendment auditors are members of the public and therefore have the same Constitutional rights as any other citizen, there are limits on what they can do, as illustrated in the table below.
| Auditors CAN | Auditors CANNOT |
|---|---|
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How should I respond to First Amendment Auditors?
- Honor their constitutional right to assemble in public places and express themselves by asking questions and filming people or activities in public spaces.
- Stay calm, be professional, and smile, you’re on camera.
- Answer legitimate questions if you know the answer but avoid engaging in debates.
- Inform the auditors of reasonable ground rules: “You are welcome to visit our facility and film activities as long as you stay out of private or restricted areas and do not interfere with county business or operations.”
- Use tactful phrases to disengage such as, “I’d love to talk more, but I have to get back to work.”
- Consider verbal warnings prior to law enforcement action for trespassing or obstructing.
- Protect confidential information by moving documents out of public view, closing laptops, etc.
- Do not order them to leave areas generally open to the public unless they are committing a law violation.
- Do not prohibit them from filming employees, citizens, or activities in public areas.
- Do not seize their recording equipment, phones, etc.
These are some general guidelines for minimizing risks associated with First Amendment Auditors. If you’d like to discuss specific situations on this topic, contact your county attorney or the NIRMA Legal Link at (402) 742-9240.
