GRC Viewpoint

First Amendment Auditors

YouTube, Twtter/X, FaceBook, TikTok, and other soapbox platforms have no end of ‘First Amendment Auditor’ interactions with public agencies and law enforcement. The general script plays out as follows – someone shows up at a public records service desk while recording with a smart phone or handheld camera, or merely stands outside of City Hall showing a mildly provocative sign, and they are politely informed that they are not permitted to record, or they are simply arrested for violating some ordnance. The ‘auditors’ immediately file lawsuits claiming First Amendment infringement. These lawsuits often prevail, with judgements or settlements that can reach into the hundreds of thousands of dollars, although usually judgements of this size result from tasings or some significant injury to the plaintiff on the part of law enforcement.

In rarer circumstances this can spill over into the private sector or non-profit. One example on YouTube are train operators reporting train spotters as trespassers after asking the spotters not to video railroad employees. The police show up, find the spotters are on public property, and do nothing. Another example is someone holding a provocative sign while standing on a public sidewalk in front of a church. Cops are directing traffic on Sunday morning, and someone in the church asks the cops to ‘run off’ the person who is ‘messing up their day’. In this case the event leads to an arrest, and a lawsuit that settled in favor of the plaintiff.

It doesn’t take much to turn this into a formula – walk into some small town police department or rural sheriff’s office with a camera, ask for some public record, be told ‘there’s no recording here’, refuse to turn off the camera, get arrested, and file a lawsuit. Some of the signs exhibited by ‘free speech advocates’ are either religious, ‘anti-religious’, or reflective of some local or regional controversy. These issues can involve guns, abortion, LGTBQ, race, or some religious denomination. They can also reflect recent legislative changes on school policies, ‘book bans’, ‘child labor’ (16 year olds serving alcohol to adults), pollution regulation, and so forth.

One reporter wanders around California county public buildings wondering out loud whether the part of the building they’re in is ruled by court-ordered non-recording orders or whether the hallway they’re in guarantees a right to record. These are not ‘small towns’, they are some of the more densely populated and affluent areas of California. This, again, spills over into the private sector when a partner in a law firm is tasked with adjudicating a matter – when acting in the capacity of a public official (a judge) the proceeding should be open to the public. If this proceeding is being held within a law firm, the rest of the firm, and perhaps the building it is located in, is outside the scope of these rights. At some point this is likely to trigger ‘reforms’, and that process may be legally complicated, time consuming, and expensive.

One rationale an ‘auditor’ might base their actions on is ‘if my ancestors and relatives fought and died to defend our liberty, should I be willing to risk my health, life, and freedom to defend those same liberties from constitutionally dubious ordnance or overreaching public official?’.

The downsides can be significant – some auditors have been severely injured, and others are living with significant restraining orders that limit their right to travel (particularly internationally), possess firearms, or attend public functions in some jurisdictions.

Cell phone towers are often operated by companies that lease to ‘anyone’, so competing phone providers can use the same tower. There is no physical constraint on a personal injury law firm placing cameras, microphones, and other sensors on such a tower aimed at local refinery complexes or transportation corridors. If it becomes evident that some portable office building situated deep inside a refinery complex is located immediately adjacent to a chemical reactor representing an explosion risk, the law firm might start ‘dropping hints’ in billboards around town about an observable corporate liability. Similarly, if the VOC sensors are being triggered routinely when the wind is blowing downstream from one particular chemical complex, then there is some value in conducting further instrumentation, and perhaps a complaint to regulators.

Is the law firm ‘peering in the windows’ of a private domicile? When watching freeways and shipping channels, obviously not. When looking at privately owned rail yards and open air pressure vessels, this might not be so clear cut. Some the evidence might have been obtained from looking through windows or recording people’s conversations without their knowledge (even from a distance of 1000 feet). They might conclude this information is ‘irrelevant’ for the cases they pursue, and focus on emissions, reckless driving, and publicly obvious workplace safety violations.

At some distance, private and public property ends up in one basket. The boundary is where ‘public interest’ outranks ‘individual rights’. Each time a recording technology or aerospace innovation improves capabilities, the rules have to be tweaked. This process accelerates as the technologies become simultaneously more precise and farther reaching.

By Meredith Poor

Meredith Poor ‘came of age’ during the emergence of single-chip microprocessors in the early 1970’s. His work has been focused on software development, ranging from sounding rocket instrumentation to frozen food packaging accounting to oil and gas record keeping. The 1970’s/1980’s were spent developing the ‘classic’ General Ledger, Accounts Receivable, Accounts Payable, and Inventory/Order Entry/Sales Analysis applications common during the ‘minicomputer era’. Transitioning to PCs in the 1990’s, he used platforms such as Microsoft Access, Visual Basic, and C#/Sql Server as these entered the mainstream. Most work was done as a contractor, which required making business cases to business owners and senior executives as circumstances dictated. Meredith is now semi-retired and living in Florida.

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