By Rebecca Potance (Follow us on LinkedIn)
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. –First Amendment of the U.S. Constitution
On June 8, 2023, YouTube content creator James Springer, who goes by the pseudonym of James Freeman, went to the courthouse in Estancia, New Mexico to conduct a First Amendment audit. Springer confronted court staff and two deputies of the Torrance County Sheriff’s Office by calling them names and cursing at them. After the court’s Chief Judge tried to restrict him from public parts of the building, his attorneys filed a complaint in the U.S. District Court for the District of New Mexico against the 7th Judicial District alleging his rights under Article II, Section 17, of the New Mexico Constitution were violated. This case is still pending.
The incident above is one example of the growing phenomenon of regular people filming government employees under the protection of the First Amendment. The premise is simple: citizen journalists hold government entities accountable by exercising their First Amendment rights to free speech and free press. In practice, these “First Amendment audits” can be more like harassment disguised as activism. Courthouses are popular targets for First Amendment auditors because they make decisions that affect people’s money and property, relationships (custody, child support etc.), and freedom (going to jail or prison). Courts regularly deal with difficult people who are unhappy about a court ruling or procedure. What makes First Amendment auditors different is that they are deliberately trying to provoke public employees in order to publicly shame them. Many First Amendment auditors, like James Freeman and the self-described “Long Island Auditor” make money by posting videos on social media sites.
Courts have generally held that the First Amendment protects video recordings of public employees, but organizations can still impose content-neutral restrictions on the time, place, and manner of these recordings. Most of this case law, however, involves the right to record police officers conducting arrests in public. For example, the 10th Circuit issued an opinion in 2022, Irizarry v. Yehia (38 F.4th 1282) upholding a YouTube content creator’s First Amendment right to film police doing a traffic stop. First Amendment auditors, however, have moved far beyond the original purpose of making sure cops don’t abuse their authority to record people in public buildings such as post offices, courthouses, public libraries, and general office buildings. Furthermore, First Amendment auditors sometimes resort to insulting and even threatening people in order to provoke a response that will go viral. They are taking advantage of the slow pace of the litigation and the lack of clear policy guidelines to push the limits of their constitutional rights. Is passively recording an arrest that you witnessed on a public street or sidewalk really the same as entering a public building and intimidating the people there? Should individuals who post videos on social media enjoy the same freedoms as credentialed members of the news media? At what point does heckling public employees interfere with their ability to do their job?
I have previously written on this blog about the Sovereign Citizen Movement, a loosely organized collection of anti-government activists. It should come as no surprise that Sovereign Citizens have embraced First Amendment audits as another tactic to antagonize government employees. In some cases, these First Amendment auditors may be retaliating against people for simply doing their job. Other times, the provocateurs are politically motivated.
Finally, if you are a public employee and encounter a First Amendment audit, it is best to remain calm and courteous to de-escalate the situation. Do not take what they say personally, and ignore them if they are rude to you. Call a security guard, a colleague, or your supervisor to back you up. If you are having trouble remaining calm, try walking away to decompress. Finally, it is extremely important to know what your building’s policies are, particularly where and when people are allowed to record videos. If the person is threatening you, you may have to shut down the entire interaction. No one can argue with silence.
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Notes Between Us (NBU) is a blog about conversations and topics of interest to the writers. The writers are expressing their personal opinions solely. The essays represent their personal beliefs and not those of their workplaces or any organization they are associated with.