This post is Part 1 of a multi-part series. For a more detailed explanation and legal analysis of the issues discussed in this blog post series (including citations to cases referenced in the post), please see Local Government Law Bulletin No. 141 , Responding to First Amendment “Audits” in the Local Government Context.
Imagine you are a local government employee, working in the lobby area of a county agency. A man walks in holding a cell phone and begins filming the lobby area, including your interactions with people seeking services from the county. When you ask what he is doing, he says, “I’m exercising my First Amendment right to film inside a government building that’s open to the public.” What do you do next?
This scenario is happening at local government buildings across North Carolina. The individuals filming in these buildings refer to themselves as “First Amendment auditors” and claim to be testing whether a local government is complying with the First Amendment by allowing them to film freely. This nationwide movement, loosely connected through social media and other online platforms, involves individuals who film their encounters with government officials and employees and subsequently post the videos online.
Some individuals involved in First Amendment audits monetize their videos by posting them to YouTube and accumulating subscribers. A quick online search produces thousands of these videos from across the United States, many of which have been edited to include sensationalized captions and text. The public comments posted to these videos sometimes mock, demean, and belittle the public officials and employees featured in the videos. On the other hand, some videos of First Amendment audits show calm and peaceful encounters, along with captions or comments praising how local government officials handle the situation. The behavior of auditors in First Amendment audit videos varies widely, with some taking a more aggressive and confrontational approach, and others acting with a more calm and composed demeanor.
First Amendment auditors argue that their filming activities serve as an important form of accountability for government officials. Indeed, video recordings can provide a powerful medium for exposing corrupt or unlawful behavior. Many recent examples of law enforcement officers using excessive force would not have come to light without viral videos filmed by bystanders. On the other hand, many First Amendment audit videos are not capturing matters of public controversy. Rather, many of these videos capture mundane vignettes at local government buildings, such as a town clerk sitting at her desk, a receptionist at a tax assessor’s office, or signs on the walls of city hall.
Dealing with First Amendment auditors raises a host of questions for local governments that want to comply with the First Amendment while also protecting their employees and private citizens from undue harassment. Is filming itself even protected by the First Amendment? If so, does the law allow a local government to place some reasonable restrictions on this activity? How could such restrictions be implemented? A new School of Government bulletin addresses legal issues associated with First Amendment audits in the local government context and provides practical takeaways for county and municipal governments that must respond to them.
The Scope of the First Amendment
The First Amendment to the United States Constitution reads:
“ Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances .”
Through the Fourteenth Amendment, this prohibition applies to states and their political subdivisions, including county and municipal governments. The First Amendment solely impacts how the government can regulate or restrict certain freedoms. It does not, for example, give any individual an affirmative right to enter a privately-owned business and begin giving a political speech against the owner’s wishes. Nor does the First Amendment restrain private entities or persons from imposing restrictions on what speech they choose to allow in privately-owned spaces.
“Filming” and “recording” are not referenced in the text of the First Amendment—after all, it was written far before video recording technology was invented. So, is filming a right that is protected by the First Amendment? More specifically, is the activity of filming itself a form of protected “speech”?
How Does the First Amendment Apply to the Act of Filming?
To date, there is no U.S. Supreme Court case establishing a right to film public officials engaged in carrying out their official duties or a right to film inside of public buildings generally. However, the Supreme Court has recognized a “paramount public interest in a free flow of information to the people concerning public officials.” Moreover, the Supreme Court has acknowledged that “the First Amendment goes beyond protection of the press and self-expression of individuals to prohibit government from limiting the stock of information from which members of the public may draw.” Filming public officials engaged in public duties may fall within this broadly defined “newsgathering” or “information gathering” right that courts have recognized in prior First Amendment cases.
Alternatively, filming may be seen as speech itself, or at a minimum, a precedent activity to speech. The First Amendment protects many forms of expressive activity, not just pure speech. Several Supreme Court cases recognize that the First Amendment protects film as a form of expression. By the logic of these cases, playing, posting, or distributing a film would be a form of constitutionally protected speech. But does that protection extend to the act of filming itself?
In the landmark 2010 Citizens United v. Federal Election Commission case, the Supreme Court recognized that “[l]aws enacted to control or suppress speech may operate at different points in the speech process.” If a law restricts filming itself, one could argue that such a law “restricts a medium of expression—the use of a common instrument of communication—and thus an integral step in the speech process.” In other words, by prohibiting someone from filming, the government is arguably prohibiting future speech (sharing or posting the video) by suppressing it at the first point in the speech process (the act of filming itself). Following this line of reasoning, several U.S. Circuit Courts of Appeals have found that the First Amendment protects the act of video recording itself, not just disseminating the recording. The Seventh Circuit Court of Appeals, for example, has held that “[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.” Am. C.L. Union of Illinois v. Alvarez , 679 F.3d 583, 600 (7th Cir. 2012).
How Does the First Amendment Apply to Filming Government Officials?
The Supreme Court has not yet decided a case regarding a right to film government officials engaged in public duties. However, a clear trend toward recognizing such a right has emerged in the U.S. Courts of Appeals. To date, the First, Third, Fifth, Seventh, Ninth, and Eleventh Circuit Courts of Appeals have recognized a First Amendment right to record police personnel carrying out their official duties in a public place. While all of these cases involved plaintiffs filming (or seeking to film) law enforcement officers engaged in carrying out their duties in traditional public forums (such as parks, streets, and sidewalks), the various courts have defined the scope of the “right to record” differently. The Eleventh and Ninth Circuits have recognized a broad right to film matters of public interest, while the First Circuit recognizes a right to film government officials engaged in their duties in public spaces. The Third, Fifth, and Seventh Circuits recognize a narrower right to film law enforcement officers engaged in their duties in public places. Several of the U.S. Courts of Appeals analyzing a First Amendment right to record the police have found that the right “may be subject to reasonable time, place, and manner restrictions.”
Notably for local governments in North Carolina, the Fourth Circuit Court of Appeals has not yet recognized a “right to record” under the First Amendment. In an unpublished 2009 decision, Szymecki v. Houck , the Fourth Circuit concluded in the context of determining qualified immunity that the plaintiff’s “asserted First Amendment right to record police activities on public property was not clearly established” in the Fourth Circuit as of June 2007. Since then, some district courts within the Fourth Circuit have recognized a right to record police activities in public places or a broader right to film government officials performing their duties.
A recent case from the Eastern District of North Carolina, Sharpe v. Winterville Police Department , held in the context of qualified immunity that the plaintiff did not have a clearly established First Amendment right to record and livestream a traffic stop. The Sharpe case is currently on appeal to the Fourth Circuit (briefs filed in the case are available here ). The Fourth Circuit’s unpublished 2009 decision in Szymecki was made before the First, Third, Fifth, and Seventh Circuits issued their decisions on how the First Amendment applies to filming police activities, so it is unclear how the court might rule on the issue now when faced with a similar legal question. Moreover, it is uncertain how the livestreaming and interactive messaging components of the filming activity in the Sharpe case may impact the Fourth Circuit’s decision.
What about filming on government property that does not involve capturing government officials? The Eighth Circuit recently examined such a case in Ness v. City of Bloomington . In Ness , the plaintiff-appellant took photographs and video recordings of a public park to document purported city permit violations. The plaintiff-appellant posted these photos and videos on her blog and on Facebook. Subsequently, the Bloomington City Council approved an ordinance prohibiting the photography and recording of children in city parks. The plaintiff-appellant sued the City of Bloomington under 42 U.S.C. § 1983, alleging violations of the First Amendment and seeking a declaration that the ordinance was unconstitutional. The Eighth Circuit ruled in favor of the plaintiff-appellant, finding that “[t]he acts of taking photographs and recording videos are entitled to First Amendment protection because they are an important stage of the speech process that ends with the dissemination of information about a public controversy.”
The Ness court considered two primary factors in determining that filming and photography in the park constituted First Amendment-protected speech. First, the court noted that the act of taking a photograph or making a recording in this case was to facilitate subsequent speech (a step in the “speech process”). On the other hand, if the filming or photography had been “unrelated to an expressive purpose,” the court noted that the act of recording might not receive First Amendment protection. In other words, what an individual plans to do with the video recording in the future becomes relevant to the analysis of whether the act of filming itself is protected by the First Amendment. Second, the court focused on the fact that the plaintiff-appellant’s photography and filming was “analogous to news gathering,” since she intended to use these photos and videos to inform the public about a matter of public concern (the alleged misuse of a public park). It is unclear whether the Eighth Circuit would have found that the plaintiff-appellant’s photography and video recording was protected speech under the First Amendment if she was not using those tools to capture and disseminate information about what she believed to be a matter of public controversy.
Open Questions About the Emerging “Right to Record”
By and large, the cases in which U.S. Courts of Appeals have recognized a “right to record” concern one category of public employees (police officers) engaged in one type of activity (carrying out public duties) in one type of area (traditional public forums). The existing case law leaves a number of open questions.
Suppose, hypothetically, that the act of filming public officials engaged in carrying out their duties is a clearly established First Amendment right. Does that mean that local governments are unable to impose any type of limitations on such an activity? The answer is no. We’ll explore that topic in our next blog post on First Amendment audits, which will discuss how the concept of First Amendment “forum analysis” informs what type of restrictions local governments may (or may not) be able to place on filming on government property.