First Amendment audits

Auditors typically travel to a place that is considered public property, such as a sidewalk or public easement, or a place open to the public, such as a post office or government building, and visibly and openly photograph and record buildings and persons in their view.[22]

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. 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.[23][24] Frequently, local law enforcement is called and the auditor is sometimes reported as a suspicious person. Some officers will approach the auditors and request his or her identification and an explanation of their conduct. Almost universally, auditors will invoke the 4th Amendment that they are not required identify themselves unless being suspected to have committed a crime. They quote the relevant law to the officer as the basis for their refusal to self-identify.[6][25] This sometimes results in officers arresting auditors for failing to identify themselves, obstruction of justice, disorderly conduct, or any potential or perceived crime that could potentially be justified by the occasion.[26][27]

The act of recording in public was first clearly established in the United States following the case of Glik v. Cunniffe,[28] which confirmed that restricting a person's right to film in public would violate their First and Fourth amendment rights. 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."[29][30] However, the legality of the auditors' actions beyond mere filming are frequently subject to debate. As long as the auditor remains in a public place where they are legally allowed to be, they have the right to record anything in plain view, subject to very limited time, place, and manner restrictions.[31][32]

Some auditors occasionally yell insults, derogatory language, and vulgarities at police officers who attempt to stop them from recording or improperly demand identification.[10] Police will sometimes charge auditors with disorderly conduct when they engage in behavior that could be considered unlawful, for example, an auditor in San Antonio was prosecuted and convicted of disorderly conduct after an audit.[33] 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 for insulting police officers..."[34] The auditor intends to appeal the decision.[35] Despite the San Antonio Police Chief's statement, insulting the police is consistently treated as constitutionally protected speech.[36][37][38] In State of Washington v. Marc D. Montgomery, a 15-year-old successfully won an appeal overturning his convictions for disorderly conduct and possession of marijuana on the grounds of free speech. Montgomery was arrested after shouting obscenities, such as "fucking pigs, fucking pig ass hole" at two police officers passing in their patrol car. Citing Cohen v. California, the Court ruled that Montgomery's words could not be classified as fighting words, and restricting speech based merely on its offensiveness would result in a "substantial risk of suppressing ideas in the process."[39]

The rights exercised in a typical audit are Freedom of Speech 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.

Auditors attempt to exercise their First Amendment right to photograph and record in public while avoiding committing any crime. The reason for this stems from the Supreme Court's decision in Terry v. Ohio which held that it was not a violation of the Fourth Amendment to detain someone when the officer has reasonable suspicion that the person has committed, is committing, or is about to commit a crime. Further, following the Supreme Court's decision in Hiibel v. Sixth Judicial District Court of Nevada, the Court held that in States that have stop and identify statutes, a person may be required to provide their name to an officer who has reasonable suspicion that the person has committed, is committing, or is about to commit a crime.

The conflict with law enforcement officers generally arises because officers sometimes deem photography, in and of itself, "suspicious behavior" and use that as a reason to detain an Auditor and demand identification. Universally, Courts that have reviewed this specific issue have held that the fact that a person takes a photograph or makes an audio or video recording in a public place or in a place he or she has the right to be, does not constitute, in and of itself, a reasonable suspicion to detain the person, probable cause to arrest the person, or a sufficient justification to demand identification. Some states have even revised their penal code to reflect that issue.[40] Nonetheless, officers frequently illegally detain or arrest auditors for "suspicious behavior." [41][42]

One of the main problems that auditors face in subsequent lawsuits are the Supreme Court's decisions in Harlow v. Fitzgerald, and Anderson v. Creighton, which held that government officials, including officers, would be shielded from liability and damages as long as their conduct does not violate "clearly established statutory or constitutional rights".[43] Therefore, while a Fourth Amendment seizure claim might exist for an auditor who stood on a public sidewalk and took pictures of a police station only to be handcuffed and placed in the back of a patrol car, a First Amendment claim would be dismissed because although a violation occurred, it was not "clearly established."[44] Qualified immunity allows "all but the plainly incompetent or those who knowingly violate the law" to escape liability for egregious and obvious violations of civil rights.[45] So far the 1st, 3rd,[46] 5th, 7th,[47] 9th,[48] and 11th[49] Circuits have held that recording the police in the course of their official duties is a clearly established right.

One auditor stated 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?"[51] Auditors state that they seek to educate the public that photography is not a crime, while publicizing cases where officers illegally stop what is perceived as illegal conduct.[52][53]

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;[54] if an employee attempts to stop a filming event, it fails the audit.[55]

Some auditors are concerned that if officers are willing to harass, detain, and arrest auditors, who intentionally avoid doing anything that might be considered a crime, normal citizens might shy away from recording officers for fear of retaliation.[56][57] Justice Jacques Wiener of the U.S. Court of Appeals for the 5th Circuit wrote in a 2017 federal appeals decision in favor of an auditor 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.”[6]