First Amendment audits
First Amendment audits involve individuals recording or photographing interactions with law enforcement and government officials in public spaces to verify their rights under the First Amendment. These audits have gained popularity in the United States, where they are often shared on platforms like YouTube, showcasing the auditors' experiences and encouraging transparency and ethical behavior from public officials. Practitioners, known as citizen journalists, argue that these activities are essential for safeguarding civil liberties. However, the practice is contentious; critics claim that it can create confrontational situations and raise questions about privacy and public access to the recorded content.
Legal precedents, such as the 2011 Glik v. Cunniffe ruling, have affirmed that citizens can record police activities in public, establishing auditors' rights. The American Civil Liberties Union provides guidelines for conducting audits, emphasizing the importance of knowing local laws and understanding one's rights. While some audits are deemed successful when interactions are minimally disruptive, others can lead to tension or intimidation. Overall, First Amendment audits continue to spark significant discussion about civil rights, accountability, and the evolving role of citizen journalism in contemporary society.
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First Amendment audits
Individuals conducting First Amendment audits photograph or film in public places to test the right to do so. The audits often feature interactions with police and are posted on YouTube. Those filming believe the audits encourage ethical behavior and government transparency. Proponents of First Amendment audits argue that they are vital to protect Americans’ rights. Opponents contend that the audits create a confrontational environment and question whether the public should have access to the films.
Background
Among the rights guaranteed by the First Amendment are freedom of speech, press, and assembly. First Amendment audits are performed by individuals whose goal is to record their interactions with law enforcement and government officials or their experiences in public spaces, such as in government buildings or on sidewalks. Their goal is to ensure that an individual has the right to record in public places. Social media such as YouTube, Facebook, X (formerly Twitter), and Instagram provide ideal platforms for activists to share their work. The auditor enters the space and records and photographs not only the space, but also the people within it and their actions. An auditor may be anyone because First Amendment protections extend to everyone, not just journalists.
The 1991 recording of the Rodney King beating by police is often considered the earliest foray into First Amendment audits, though they were not called that at the time. George Holliday, a plumber, recorded Rodney King being violently beaten by Los Angeles police officers. The video was broadcast throughout the world and sparked race riots that extended beyond Los Angeles, California. Since then, citizens have been responsible for bringing incidents of police brutality onto millions of computer and cellphone screens.
Attorney Simon Glik used his phone in 2007 to record Boston police officers from the bicycle unit making an arrest in a public park. Glik stood roughly 10 feet (3 meters) from the police and did not speak to them or interfere with the arrest. When police saw him recording them beating the suspect, they arrested Glik and charged him with illegal wiretapping and aiding the escape of a prisoner. Glik sued, and in 2011, the US Court of Appeals for the First Circuit held in Glik v. Cunniffe that a private citizen has the right to record police officers carrying out their duties in a public space. This decision was the first time a court clearly established an auditor’s rights. Although police are the common subjects of First Amendment audits, auditor rights also extend to other situations, including documenting public protests. Two other important court rulings concerning First Amendment audits, Irizarry v. Yehia (2022) and United States v. Cordova (2022), also involved YouTube journalists who were arrested while performing an audit.
The American Civil Liberties Union (ACLU) lists multiple points to remember for those planning to audit. According to the ACLU, anyone in a public place may photograph anything in plain view, including police activity. Auditors are not obligated to turn cameras or videos to police without a warrant. However, police may order auditors to stop documenting if they are truly interfering or obstructing police activity. Legally, recording visual and audio content is not always the same, and auditors should make themselves aware of local wiretapping laws. When police detain an auditor, the ACLU states that the individual should ask what crime they are committing. The auditor should also remind police that video and photographic documentation is protected under the First Amendment. The auditor should then ask if they are free to leave.
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First Amendment auditing is frequently viewed as confrontational, making any auditing situation potentially awkward for all parties. During a successful audit, an individual is treated as if a camera were not in their hand. For example, a person standing on a sidewalk watching a mayor chastise another person on the Town Hall steps should be treated the same way regardless of whether they are photographing or recording the situation. Some people also consider an audit successful if police or security ask an auditor only minor questions before leaving.
Not all audits are successful, however, and problems may occur on either side. Those being audited may feel intimidated by the auditor or the camera. They may also not be well-informed about the legal need for access and transparency. Ignorance is not an excuse for denying First Amendment freedoms, however. Auditors may also intimidate others by using profane or emotionally charged language. Although profanity is protected in spaces that are traditionally considered public forums, restrictions may apply in more limited-purpose spaces. In response to increased audits in the 2010s, the International Association of Chiefs of Police (IACP) published a formal guide to recording police activities. The First Amendment Watch, an online news and educational resource, lists situations that may be dangerous for auditors, such as filming voters dropping off voter ballots, recording marked police cars in a police station parking lot, and livestreaming outside a synagogue. (An auditor who live-streamed a synagogue was shot in the leg by a security guard.)
First Amendment audits continue to gain more attention from the public, government entities, and journalists. Daniel Warmus, a self-proclaimed auditor and founder of Auditing Erie County, has participated in more than fifty audits. In the mid-2020s, his YouTube channel boasted over 145,000 subscribers with millions of views. Warmus was also one of more than eight hundred people charged for participating in the US Capitol riot on January 6, 2021. His audits have included taking photos of the interiors of police cars and entering public buildings while recording.
Traditional journalists, who, in the past, were well-versed in First Amendment and Right to Know laws, pay close attention to these audits and those who initiate them. The ease and speed at which audit results can be disseminated has caused some journalists to pause and consider the impact that these audits may have on the future of journalism.
Bibliography
“Controversial ‘First Amendment Auditors’ Test the Right to Film in Public Spaces.” First Amendment Watch, 2 Aug. 2023, firstamendmentwatch.org/deep-dive/controversial-first-amendment-auditors-test-the-right-to-film-in-public-spaces. Accessed 28 Dec. 2024.
Epstein, Kayla , and Avi Selk. “What Is ‘Auditing’ and Why Did a YouTuber Get Shot for Doing It?” Washington Post, 15 Feb. 2019, www.washingtonpost.com/technology/2019/02/15/what-is-auditing-why-did-youtuber-get-shot-doing-it. Accessed 28 Dec. 2024.
“Keeping Calm with First Amendment Audits.” Municipal Association of South Carolina, Jan. 2020, www.masc.sc/Pages/newsroom/uptown/January-2020/Keeping-Calm-With-First-Amendment-Audits.aspx. Accessed 28 Dec. 2024.
“Know Your Rights: Protesters’ Rights.” American Civil Liberties Union, www.aclu.org/know-your-rights/protesters-rights#i-want-to-take-pictures-or-shoot-video-at-a-protest. Accessed 28 Dec. 2024.
Mitchell, Charlie. “First Amendment Auditors’: The Americans Who Pick Fights with Police for Cash.” The Times, 3 Aug. 2021, www.thetimes.co.uk/article/first-amendment-auditors-the-americans-who-pick-fights-with-cops-for-cash-5knfj6rqh. Accessed 28 Dec. 2024.
Telvock, Daniel. “How First Amendment ‘Auditors’ Target Public Servants for Viral Videos.” WIVB-TV, 3 May 2022, www.wivb.com/news/investigates/how-first-amendment-auditors-target-public-servants-for-viral-videos. Accessed 28 Dec. 2024.