Responding to First Amendment Audits: Practical Considerations for Local Governments

Published for Coates' Canons on November 30, 2022.

This post is Part 9 of a multi-part series co-authored by Kristi Nickodem and Kristina Wilson. 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. 

After considering the existing caselaw on video recording and forum analysis, local governments in North Carolina should consider developing guidance, training, signage, and/or policies regarding filming on government property. There is no “one size fits all” solution to this training or these policies because some types of forums will look different from jurisdiction to jurisdiction. Remember, forum analysis is a case-specific, fact-intensive determination made by a court evaluating the constitutionality of a specific restriction. For example, if one county allows many types of expressive activity (pamphleting, posting signs, protests, etc.) in the common areas of its county offices, but a neighboring county has not traditionally allowed such activity in its offices, a court may categorize the same type of area in each county differently.  

To be clear, a local government cannot necessarily transform property into a certain kind of forum simply by declaring it to be so as a matter of policy. For example, a local government’s policy stating that a public park was a nonpublic forum for First Amendment activity would not be sufficient to transform that park (a traditional public forum) into a nonpublic forum. However, outside of traditional public forums like parks, sidewalks, and streets, the government’s stated intention and policy with respect to the use of a particular area is highly relevant in the overall forum analysis. Courts will look to a local government’s express policies (rules, ordinances, handbooks, guidance documents, etc.) as well as to its customs and practices with respect to a particular area to determine how the government intended to open (or not open) that area to expressive activity.  

Adopting a Filming Policy 

Local governments should consider whether to adopt a policy regarding filming on certain areas of government property. For First Amendment purposes, it is immaterial whether this occurs in the form of an ordinance, a policy, or a resolution. One method to consider is having the governing board for a county or city adopt an ordinance giving the county manager or city manager authority to adopt and enforce a policy regarding this issue.  Crafting a thoughtful policy—and providing training on how to consistently implement the policy—prevents employees from having to make ad hoc decisions on how to handle these situations.  

Below are several issues that local governments should consider when drafting and implementing a policy regarding filming.  

  • Policies should not target specific opinions, beliefs, or perspectives in their language. Policies explicitly prohibiting recording negative interactions, prohibiting recording of government employees for purposes of criticism or harassment, or prohibiting the dissemination of recordings for purposes of criticism or harassment would all likely be treated as viewpoint-based restrictions, which are prohibited in all forums. Policies that specifically reference First Amendment auditors in their language could also be held to be content and viewpoint-discriminatory if the motive underlying the policy is to suppress the message of those particular speakers.  
  • Local governments should think carefully about the governmental interests they intend to promote via no-filming policies. When possible, they should articulate these interests in their policies to demonstrate that they are unrelated to an intent to suppress speech. While the standard applied to no-filming policies varies depending on the forum at issue, the policies and regulations are more likely to be upheld by courts in any forum if they are clearly connected to the purported purpose they serve.  
  • Local governments should be as specific and descriptive as possible when establishing restrictions in specific areas. Does the restriction apply to an entire facility? Does the restriction apply solely in “employees only” or “restricted” areas? What about areas outside the building? Clear drafting will help local government employees and the public to understand exactly where filming is prohibited.  
  • Local governments should consider including language explaining the potential consequences of continuing to record a video after being asked to cease such activity. For example, the policy might state that continuing to film in violation of the policy will be deemed disruptive and be grounds to remove someone from a particular facility. 
  • If a local government decides to prohibit filming in a certain area, it should consider including an exception for recordings made by law enforcement officials in the course of performing their official duties. An overly broad policy without such an exception could be construed to prevent law enforcement officials from recording with bodycams, for example.  
  • Local governments will need to decide whether a policy should only apply to video/audio recordings or will also prohibit still photography. Different considerations might apply to these different mediums. As part of this determination, consider whether there are situations in which staff in a particular building might need to take pictures as part of their official duties. Aside from any specific exceptions the local government carves out in a policy, a restriction on still photography should be enforced consistently regardless of the reason why someone is taking the photograph or the identity of the person taking the photograph, which may be challenging in some cases.  
  • Local governments may want to consider whether to include an exception allowing filming with the consent of all parties who are being filmed. On the one hand, such an exception theoretically solves privacy and confidentiality concerns, since the parties will have provided consent. It could also demonstrate an effort towards more narrowly tailoring a restriction, as opposed to a complete prohibition on recording. On the other hand, this exception may be difficult to enforce or defeat the purpose of the restriction in certain forums with “captive audience” issues, as discussed in an earlier blog post in this series. Moreover, depending on a government’s purpose and interest in enacting the filming restriction, a consent exception may be contrary to that interest. Accordingly, it is possible that a consent exception may be appropriate in some forums and not in others.  

Implementing a Policy Regarding Filming  

If a county or municipality adopts a policy restricting filming in certain areas, it is important to train department heads and public-facing employees on the use and application of the policy. This includes emphasizing that the policy must be applied in a consistent and neutral manner, regardless of who is attempting to make a recording. In other words, if a local government has decided to completely prohibit filming in certain areas, then an “auditor” should be treated the same as a member of the media who asks to take video or a photograph inside one of these buildings. Unless the policy has carved out particular exceptions (for example, for recordings made by law enforcement officials), employees should be reminded that filming in certain areas is prohibited regardless of the identity of the person behind the camera or the intent of the person behind the camera. It is also important to train law enforcement officers who may be involved in dealing with individuals who refuse to comply with the policy. 

When training officials or employees who will be implementing any policy restricting filming, it is crucial to emphasize the importance of de-escalation. Some auditors may provoke or elicit an emotional response from the government employees who confront them. Intense, emotional, or argumentative responses by government employees and officials make more sensational videos, which are more likely to go “viral” and get increased viewer engagement. Staying calm, collected, and rational in the face of pressure—though challenging—helps to de-escalate these situations.  

Any restriction on filming in certain areas should also be clearly communicated to the public in the form of signage, particularly if those areas are routinely held open to the public. 

Key Takeaways Regarding First Amendment Audits 

This post marks the end of our blog post series on First Amendment audits. Analyzing when, where, and how a local government can regulate First Amendment auditor activity presents a host of complex and challenging issues. Local government officials should keep in mind the following key takeaways from this blog post series and the bulletin when considering how to respond to First Amendment audits. 

  • Is filming a First Amendment right?
    • The “right to record” public officials has not yet been recognized as a First Amendment right by the Supreme Court or by the Fourth Circuit Court of Appeals. However, many U.S. Courts of Appeals have recognized some form of such a right, so local governments would be wise to act as if there is a First Amendment right implicated in this activity. Even in jurisdictions where courts have recognized some version of this right, however, the extent to which the right may extend beyond filming law enforcement officers in traditional public forums is still unclear.
  • Can a local government regulate filming in certain areas?  
    • When analyzing the constitutionality of government regulations on expressive activities on government property, courts engage in forum analysis to determine the nature of the forum being regulated and the corresponding standard of judicial review that applies to regulations in the forum. When seeking to regulate filming on public property, local governments should begin by analyzing the nature of the forum they seek to regulate and considering whether the contemplated restriction is likely to meet the standard for constitutionality in that forum.  
    • When classifying an area as a particular type of forum, courts evaluate the government’s intent for public expression in that area by examining the government’s policies and practices regarding use of the area, the nature of the area at issue, the extent of the use granted, and the history of the area. Policies and practices that limit expressive activity to certain topics or certain groups of people or restrict expressive activity entirely are more likely to suggest a governmental intent for a limited or nonpublic forum. Policies and practices that allow the general public to engage in a broad range of expressive activity are more likely to indicate governmental intent for a designated public forum.  
    • As a general rule of thumb, exterior areas (streets, parks, sidewalks, plazas) are likely to be considered traditional public forums, though there are some exceptions described in the bulletin. Interior areas are likely to be limited public forums or nonpublic forums—both of which correspond with a lower level of judicial scrutiny. However, if an interior area has been intentionally opened by the government for use by the public as a place for a broad spectrum of expressive activity in the same way as a traditional public forum (parks, streets, sidewalks, etc.), it will likely constitute a “designated public forum.” Restrictions in such an area will be subject to the same demanding level of scrutiny that is applied in traditional public forums.  
    • While traditional public forums will maintain their historical classification regardless of government action, designated and limited public forums do not need to be held open indefinitely. Local governments may “close” designated and limited public forums via policy and practice.  
  • What are the criteria for imposing restrictions on expressive activities protected by the First Amendment? 
    • In traditional public forums and designated public forums, the government may impose reasonable time, place, and manner restrictions on speech if they are content-neutral, narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication. Regulations based on content in these forums must satisfy strict scrutiny, meaning they must be necessary to serve a compelling government interest and narrowly tailored such that the regulation is the least restrictive means of achieving that interest.  
    • In limited and nonpublic forums, restrictions need only be viewpoint-neutral and reasonable in light of the purpose of the forum.  
    • Restrictions that are intended to suppress expression merely because public officials oppose the speaker’s viewpoint are prohibited in all forums. A restriction must be written and applied in a viewpoint-neutral manner in order to be upheld as constitutional, regardless of the forum at issue. 
  • What should a local government keep in mind when attempting to regulate filming activity on certain areas of government property? 
    • In assessing the reasonableness of a restriction, courts 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 its restrictions. Employee safety, privacy and confidentiality concerns, preventing disruption of a government property’s intended function, and the captive nature of a vulnerable population in the forum are all issues that a local government should consider when deciding whether a restriction is appropriate in a certain forum. 
    • Local governments considering enacting filming restrictions should evaluate what governmental interests and concerns they wish to address with a no-filming policy. They should be able to explain the governmental interests at stake in the particular area and clearly articulate how the no-filming policy connects to and promotes those interests. Policies must be written and applied in a way that does not favor some individuals seeking to film over others.   
  • How should a local government handle encounters with First Amendment auditors? 
    • Make sure that any policies restricting filming, usage, or access in a particular area are communicated to the public via clear signage.  
    • Consider identifying a “point person” within each local government building who can take the lead on encounters with individuals filming in the building. This individual should be knowledgeable about filming policies applicable to areas in the building and capable of de-escalating these encounters when necessary. If an auditor violates a local restriction regarding filming, the employee may direct the auditor to cease filming and to leave the building if the auditor does not comply. If the auditor refuses to cease filming or to leave the building, the employee may want to contact law enforcement.  
    • If an auditor enters a restricted area or refuses to leave the area after a directive to leave, involving law enforcement may be appropriate. This type of behavior may also be grounds for a trespass charge.   

Remember, if you want to explore any of the topics discussed in this blog post series in more depth, including citations to legal authority, please read Local Government Law Bulletin No. 141, Responding to First Amendment “Audits” in the Local Government Context. 

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Topics - Local and State Government