Responding to First Amendment Audits: Trespass Issues

Published for Coates' Canons on November 28, 2022.

This post is Part 7 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. 

When a First Amendment auditor has entered a restricted area or has otherwise engaged in substantially disruptive behavior, local government employees may direct the auditor to leave. If the auditor refuses, local governments may need to involve law enforcement. An auditor might be convinced that they have not broken the law by entering and filming in a public building, but as North Carolina trespass law demonstrates, that may not always be the case.  

Overview of North Carolina Trespass Law 

Under North Carolina law, the type of trespass that may be most relevant to some encounters with First Amendment auditors is second-degree trespass. Second-degree trespass occurs when an individual enters or remains on another’s premises without authorization and after being asked to leave by a person in charge of the premises, a lawful occupant, or another authorized person. G.S. 14-159.13(a)(1)-(2). An individual can also be charged with second-degree trespass if they enter or remain on another’s premises without authorization after being notified of restrictions on entry by posted notices. As a threshold issue, second-degree trespass requires entering or remaining on the premises of another. A common misconception is that government buildings cannot be the premises “of another” since they are held open for the public and in some sense belong to the public. This interpretation misconstrues and overstates public entitlement to access government-owned buildings.  

As the bulletin addresses in Section II, local governments have similar rights to private property owners with respect to controlling the use of property. Government buildings—even when held open to the public—belong to the government. As a result, government buildings or premises constitute the premises “of another” for purposes of North Carolina’s trespass statutes. However, if government buildings are held open to the public, the law implies the government’s consent for the public to enter at least some areas of the building. 

This default implied consent to enter and remain in government buildings extends only to areas that are held open to the public. Entering an area that is not held open to the public, even if it is located adjacent to an area that is held open to the public, exceeds the boundaries of the government’s implied consent. For example, in In re S.D.R., 191 N.C. App. 552 (2008), the defendant was in a local N.C. Cooperative Extension office when he entered the director’s office and stole money from her purse. Although the director’s office was located in a public building that housed public agencies, there was no evidence that the director’s office was itself held open to the public. The director’s office was open by appointment and invitation only and was not held open for regular foot traffic. Moreover, even if the defendant theoretically had implied consent to enter the office, his criminal act of stealing money was sufficient to render the implied consent void. 

In contrast, in State v. Winston, 45 N.C. App. 99 (1980), the North Carolina Court of Appeals held that the defendant had not exceeded the scope of the implied consent to be in a government building. In Winston, the defendant entered the Clerk of Court’s office located in the Cumberland County Courthouse. The door to the office was partially open and there were no signs indicating that the office was private.  Members of the general public used the office and the office was open for public business when the defendant entered. The defendant did not engage in any criminal conduct but merely stood in the office and stated that he wanted to leave a note for the public defender. Such conduct was insufficient to invalidate the implied consent. As a result, the defendant did nothing to render the implied consent void and had implied consent to enter that office. 

The government can also explicitly revoke this implied consent, as was the case in State v. Nickens, 262 N.C. App. 353 (2018). In Nickens, the defendant began to shout and swear at Division of Motor Vehicle (DMV) employees as the defendant waited in the DMV lobby, a publicly accessible area. A DMV License and Theft Bureau inspector instructed the defendant to leave and attempted to escort her off the property. The DMV inspector’s order for the defendant to leave explicitly revoked any implied consent because the DMV inspector was a lawful occupant and an “authorized person” for purposes of the second-degree trespass statute. 

Finally, case law suggests that remaining in a building without a legitimate purpose may be a sufficient basis to expressly revoke implied consent in certain cases. In State v. Marcoplos, 154 N.C. App. 581 (2002), a group of protesters entered a privately owned corporate building through its lobby. The protestors demanded to see the CEO and a security officer asked them to leave. The protestors were ultimately charged with second-degree trespass after refusing to leave the lobby area.  The lobby was held open to the public for certain legitimate purposes such as visiting any of the business located in the lobby. As a result, the protestors likely had implied consent to enter the lobby. However, the court held that this implied consent was expressly revoked both because the security officer directed the protestors to leave and because the defendants “no longer had a legitimate purpose for being in the lobby.” This case is distinguishable from the local government context in that it deals with privately owned property. However, it indicates that the lack of legitimate purpose for remaining in an area held open to the public may in some cases be a sufficient basis for a person with lawful authority to expressly revoke implied consent to remain in the area.  

What constitutes a “legitimate purpose” to remain in a particular area of government property may depend on the policy, practice, and historical use concerning the area, which is where trespass issues dovetail with forum analysis. Consider, for example, Make the Road by Walking Inc. v. Turner, 378 F.3d 133 (2004), where welfare office policies restricted access to individuals with “official business” at the welfare center and to activities that were “specifically authorized” by the agency’s administrator.  Limiting public access to those with official business—including welfare claimants and those accompanying them—served as evidence of the government’s intent for the welfare waiting rooms to be nonpublic forums for First Amendment activity. In the trespass context, similar policies might serve to limit the scope of implied consent for the public to be in certain areas of government buildings by defining what constitutes a “legitimate purpose” for the public’s presence in the building. 

Application to the Auditor Context 

As discussed above, while government-owned premises are the premises “of another,” the law implies consent to enter and remain on government-owned premises that are held open to the public. As a result, no trespass charge is likely to succeed if the charge is based merely on someone entering a government building that is held open to the public. However, if someone with lawful authority directs an individual to leave, this default implied consent is revoked. 

The trespass legal framework provides several relevant principles in the First Amendment auditor context. First, auditors are not entitled to enter or remain in every area within a public building—only those areas intentionally held open to the public. In determining whether an area is held open to the public for trespass purposes, courts will consider whether areas are marked as “private,” “restricted,” “employees only,” or with some other similar qualifying language. Courts will also examine whether the public in practice does access those areas without an appointment or invitation and whether the area is open to regular foot traffic. If an auditor enters an area that is restricted, not traditionally available to the public, or not open to foot traffic, the auditor has likely exceeded the scope of the implied consent to be in the area and can be told to leave.  

Even when an auditor is in an area that is held open to the public, the auditor’s behavior may be sufficient to revoke the implied consent to enter and remain there. If an auditor substantially disrupts normal operations after being ordered to desist or leave, that conduct may be sufficient to revoke implied consent to remain, resulting in a trespass. If the auditor engages in any illegal conduct, that behavior will also be sufficient to revoke any implied consent to be in the building. This may also be true when a local government establishes a “no-filming” policy in a particular area and the auditor refuses to comply with the policy after being directed to do so.  

Consider Sheets v. City of Punta Gorda, Florida, 415 F. Supp. 3d 1115 (M.D. Fla. 2019), in which a federal district court affirmed that a city restriction on recording at city hall was reasonable and viewpoint-neutral. The city ordinance at issue (available here, in Section 15-48) prohibited nonconsensual video recording within city-owned, controlled or leased property and authorized city personnel to direct any violators of the ordinance to immediately leave the premises. Any violators who refused to leave were deemed trespassers and the ordinance empowered law enforcement to issue trespass warning notices. 

Using the standard applicable to nonpublic forums and limited public forums (viewpoint-neutral and reasonable in light of the purpose of the forum), the court concluded that the language regarding trespass warnings in the ordinance was reasonable under the First Amendment. The court found it relevant that the ordinance at issue did not empower city employees to control the duration of the trespass warning, but rather, “simply empowers City employees to ask the police to issue a trespass warning.” The Sheets case demonstrates how a policy restricting recording in a nonpublic forum or limited public forum may comply with the First Amendment by being viewpoint-neutral and reasonable, while also empowering government employees to revoke the implied consent of those who violate the policy to remain in the forum. 

When drafting policies or ordinances regarding restrictions on filming, local governments should consider including language explaining the potential consequences to violating such a policy, which may include being told to leave the building. Such policies should be communicated clearly to the public through signage or other means. If a local government has such a policy and local government employees encounter an auditor who refuses to stop filming, an employee should first inform the auditor of the policy and ask the auditor to comply. If the auditor continues to film in violation of the policy or engages in other disruptive behavior, the employee should order the auditor to leave the premises (thereby revoking implied consent to remain in the building). Finally, if the auditor refuses to comply with the directive to leave the premises, the employee should involve law enforcement. Following this step-by-step approach, if it is possible to do so safely, may help to avoid unnecessarily escalating tensions in an encounter with an auditor who is unaware of the policy or is unwilling to comply with the policy.  

Threats of Violence and Incitement to Unlawful Activity  

What if an auditor not only refuses to leave, but also makes threats towards local government employees? Regardless of the forum where filming is occurring, auditors do not have a First Amendment right to threaten violence or incite imminent lawless action towards local government officials. The First Amendment permits the government to ban a “true threat,” since “threats of violence are outside the First Amendment.” In State v. Taylor, 379 N.C. 589 (2021), the North Carolina Supreme Court recently defined a “true threat as “an objectively threatening statement communicated by a party which possesses the subjective intent to threaten a listener or identifiable group.” Intimidation, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death, is a form of true threat. Likewise, speech that is “directed to inciting or producing imminent lawless action and is likely to incite or produce such action” is not protected under the First Amendment. On the other hand, political hyperbole and “vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials” that do not involve threats of violence or incitement to imminent unlawful activity are generally protected forms of speech under the First Amendment. Whether on social media or in physical buildings, the First Amendment does not require local governments to tolerate or allow threats of violence towards local government employees.  


In our next installment in this blog post series, we’ll discuss how local governments should respond to public records requests made by First Amendment auditors.  

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Topics - Local and State Government