Responding to First Amendment Audits: The “Reasonableness” Standard for Limited Public Forums and Nonpublic Forums

Published for Coates' Canons on November 21, 2022.

This post is Part 6 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. 

If a local government restricts filming or other forms of “speech” in a nonpublic forum or limited public forum, those restrictions must be viewpoint-neutral and reasonable in light of the purpose of the forum.  What does it mean for a restriction to be “reasonable”? Reasonableness is a much less demanding standard than the standard for a traditional or designated public forum. As the Supreme Court has stated, “The Government’s decision to restrict access to a nonpublic forum need only be reasonable; it need not be the most reasonable or the only reasonable limitation.” Courts have noted that satisfying the reasonableness standard “is not a particularly high hurdle.” The Fourth Circuit has recently opined that reasonableness in a nonpublic forum “is akin to some form of so-called intermediate scrutiny, in which the government’s means and ends must both be reasonable,” while noting there is “no requirement that the restriction be narrowly tailored or that the Government’s interest be compelling.” 

Restrictions Must Be Capable of Clear Interpretation and Application 

Even though narrow tailoring of restrictions on speech is not required in limited public forums and nonpublic forums, such restrictions still must be clearly articulated and capable of consistent application. Courts have been reluctant to accept policies that restrict First Amendment activity based on subjective or overly general criteria.  The Fourth Circuit has stated that “even in cases involving nonpublic or limited public forums, a policy…that does not provide sufficient criteria to prevent viewpoint discrimination generally will not survive constitutional scrutiny.” 

In Minnesota Voters Alliance v. Mansky, the Supreme Court recently ruled that a state’s ban on political apparel in polling places violated the First Amendment because the word “political” was too vague and confusing for the law to be clearly and consistently applied. The Court found that while the law’s objective (preventing voter intimidation, confusion, and disorder) was reasonable, the law’s approach to the problem did not provide “objective, workable standards.” In making its decision, the Court noted that while reasonableness is a “forgiving test,” the government “must be able to articulate some sensible basis for distinguishing what may come in from what must stay out.” 

What does this mean for local governments? Any restriction on filming should be written in a way that is capable of being clearly understood and consistently applied by the government employees who will be enforcing it. A policy, ordinance, or other restriction that gives significant discretion to officials and employees to interpret where, when, and how to stop someone from filming may lead to misinterpretation and inconsistent application. Moreover, a vague or ill-defined restriction may lead some officials or employees to apply the restriction in a viewpoint-discriminatory manner, which is prohibited in all forums.  

Restrictions Must Support a Legitimate Government Objective 

The purpose and nature of the forum at issue plays a significant role in determining what type of restrictions are reasonable. As the Supreme Court has stated, “consideration of a forum’s special attributes is relevant to the constitutionality of a regulation since the significance of the governmental interest must be assessed in light of the characteristic nature and function of the particular forum involved.” In assessing reasonableness, courts generally consider factors such as the uses of the forum, the risks associated with the speech activity in question, and the government’s proffered rationale for a restriction on speech. 

In nonpublic forums and limited public forums, courts have upheld restrictions on First Amendment activities as reasonable where the restriction was intended to: 

  • Prevent disruption of a government property’s intended function; 
  • Keep walkways free of obstruction;
  • Protect the safety of those who work in a government building; 
  • Protect the safety and convenience of those using a public forum; 
  • Avoid disruption and maintain the peace in a government workplace;
  • Prevent expressive activity that would hinder a government agency’s effectiveness in serving and caring for a vulnerable population;
  • Avoid the appearance of political favoritism on behalf of the government; or 
  • Maintain established legal procedures in the calmness and solemnity of a courtroom setting as necessary to the fair and equal administration of justice. 

What if the harms a local government is trying to prevent have not occurred yet? The Supreme Court has stated that “the Government need not wait until havoc is wreaked to restrict access to a nonpublic forum.”  Phrased another way, “the flexibility of the reasonableness standard also empowers the government to act prophylactically.”  For example, in Perry Education Association, the Supreme Court found that a restriction on a union’s ability to communicate with teachers served a government interest in ensuring peace and avoiding disruption within schools.  Despite the fact that there was no showing in the record of past disturbances or evidence that future disturbance would be likely, the Court noted that it does not “require[] that such proof be present to justify the denial of access to a non-public forum on grounds that the proposed use may disrupt the property’s intended function.” However, even though the government may not be required to prove past or future harm, it must still provide some explanation as to why certain “speech” (such as filming) is inconsistent with the intended use of the forum. 

Other Government Objectives to Consider in the “Reasonableness” Analysis  

1. Safety and Efficacy of Local Government Employees 

Local governments have an important interest in preserving the ability of employees to carry out their duties safely, including an interest in preventing disruptions to government employees carrying out their duties in nonpublic forums. Even in cases involving filming of police activity in traditional public forums—where the “right to record” has been established by multiple U.S. Courts of Appeals—courts have found that such a right could be limited if recording the police officer interferes with (or is about to interfere with) the officer’s duties. These cases indicate that restrictions may be upheld as reasonable when they are necessary to ensure public officials and employees are capable of carrying out their duties. They also indicate that when evaluating a restriction, courts will consider the importance of maintaining the safety of the general public, the government official or employee involved, and the individual engaged in filming. 

2. Protection of Confidential Information 

 In some local government agencies, private citizens sometimes have to disclose sensitive personal information to receive services. For example, individuals in the lobby of a department of social services or a local health department often must disclose the type of services they are seeking in order to be ushered into a more private intake or treatment room. Such disclosures could involve information about the type of economic assistance a person is seeking (e.g., food and nutrition services, Medicaid), information about medical treatment or testing a person is seeking, or information about child abuse or neglect. A First Amendment auditor filming in one of these lobby areas may capture these disclosures on video and then disseminate the information to the general public via YouTube and other platforms. While it is accurate that any person sitting in the lobby might also overhear such disclosures, there is a significant difference between accidentally overhearing a conversation and intentionally broadcasting such a conversation to the public at large.  

Consider, for example, the individual at a local department of social services seeking to report suspected child abuse. In some cases, even showing the identity of the individual in the building’s lobby—much less capturing the information they are disclosing to employees—may endanger the life of a child or the person making the report. The privacy and safety risks associated with filming become even more heightened when one considers that auditors may also be “livestreaming” their videos—broadcasting the location of certain individuals in real-time to viewers on social media. As another example, imagine a local health department that holds a clinic for sexually transmitted infection testing every week on Tuesday afternoons. By simply posting a video of an individual in the department lobby speaking to a nurse on a Tuesday afternoon on YouTube, an auditor could be disseminating highly sensitive information about an individual’s health status.  

The Supreme Court has recognized that individuals have a privacy interest “in keeping personal facts away from the public eye.” Moreover, the Court has noted that “the fact that an event is not wholly private does not mean that an individual has no interest in limiting disclosure or dissemination of the information.” Sharing information with a government employee in a lobby setting—a selective and necessary disclosure to receive government services—is not equivalent to authorizing the disclosure of the same facts to thousands or millions of viewers on YouTube.  

Beyond the interest in protecting the privacy and dignity of people seeking services from a local government agency, some agencies also have a legal obligation to protect confidential information related to the people they serve. For example, local health departments, county departments of social services, and consolidated human services agencies are subject to a host of federal and state laws protecting health information and social services information from disclosure. This includes, for example, laws that restrict the disclosure of protected health information, information identifying someone as having a communicable disease, or information identifying an individual as a recipient of social services or public assistance—all of which might be captured by someone filming in the lobby area of these agencies. Local governments should consider carefully whether failing to restrict filming in such areas may be facilitating unlawful disclosures of confidential information.  

3. Imposition Upon a Captive Audience 

As a general rule, the First Amendment does not allow the government to regulate protected speech simply because the government believes an unwilling listener or viewer will find it offensive. An exception to this rule is the “captive audience doctrine,” which recognizes that the government may prohibit offensive speech when substantial privacy interests of a “captive” audience are being invaded in an essentially intolerable manner.  The Supreme Court has largely limited the captive audience doctrine to cases involving speech directed at people’s homes and residential neighborhoods.  However, the Supreme Court has recognized that “when a nonpublic forum is involved, the government may limit speech to protect against its imposition upon a captive audience, even outside of the home.” 

Courts have shown a greater willingness to uphold restrictions on speech that are targeted towards individuals “in particularly vulnerable physical and emotional conditions.”  For example, the Supreme Court found a restriction on speech appropriate in public airport terminals where face-to-face solicitation presented “risks of duress” to passengers traveling through an airport.  In that case, the Court found it relevant that “[t]he skillful, and unprincipled, solicitor can target the most vulnerable, including those accompanying children or those suffering physical impairment and who cannot easily avoid the solicitation.” The same could be said of a First Amendment auditor who directs their cell phone camera towards unwilling participants in lobbies and waiting rooms of agencies that provide public health services, social services, veterans’ services, aging and adult services, and other health and human services. These are areas where vulnerable populations are required to go if they want to receive crucial services from their local government.  

Several courts have considered the presence of vulnerable individuals seeking services in finding restrictions on speech in a nonpublic forum to be reasonable. For example, in Families Achieving Independence & Respect v. Nebraska Department of Social Services, 111 F.3d 1408 (8th Cir. 1997), the Eighth Circuit held that it was reasonable for a department of social services to restrict outside groups from speaking with clients in the agency lobby because these clients were “virtually a captive audience.” The court noted that the individuals in the lobby could be particularly “susceptible to coercion” due to the vulnerable nature of their circumstances and the necessity of their presence in the lobby to receive government services.   

Filming is arguably more invasive than other forms of “speech” directed at a captive audience because it actively captures the likeness and actions of the subject without the subject’s consent. In limiting its application of the captive audience doctrine, the Supreme Court has stated that “the burden normally falls upon the viewer” to avoid being offended by speech “simply by averting [his] eyes.”  However, filming presents a form of “speech” that an individual cannot avoid by averting her eyes or covering her ears. The only way a private citizen in the lobby of a local government agency can avoid the intrusion of filming is to leave the building, thereby forcing an individual to choose between maintaining their privacy and receiving necessary services from the agency.  

Some auditors might argue that the “captive audience” problem—and any associated privacy concerns—can be resolved if local governments permit them to film with the consent of the parties who are captured on camera. However, this argument ignores the same concerns that make a vulnerable captive audience particularly susceptible to being harmed or harassed by filming in the first place. The same potential for coercion and confusion exists with respect to an individual who is approached by an auditor asking if they consent to being filmed.  

For example, imagine a local government with a policy that generally restricts filming in certain areas, but has an exception allowing filming with the consent of all parties captured on camera. In an effort to comply with policy, a First Amendment auditor walks around a county department of social services or local health department lobby asking each person sitting in the lobby if they are willing to be filmed. Some individuals sitting in those lobbies may feel pressured to consent or may fear harassment if they refuse to consent. Some may be confused and think they must consent to being filmed in order to receive government services. Many individuals in these lobbies will be particularly vulnerable to coercion since they will be seeking services that they cannot receive from any other entity. Other individuals in these lobbies may simply lack capacity to provide consent on their own, given that these agencies serve and work with minors and adult wards under guardianship. It would be difficult—if not impossible—for a local government to consistently monitor compliance with such a policy in a crowded waiting room or lobby filled with people who may or may not have decisional capacity to provide informed consent.  

 

An upcoming blog post in this series will discuss more practical considerations for local governments who want to create policies around filming. In our next post in this series, we will discuss trespass issues that may be relevant to some encounters with First Amendment auditors.  

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Topics - Local and State Government