First Amendment Auditors: Citizen Oversight or Harassment? EXERCISE OF FIRST AMENDMENT RIGHTS ON PUBLIC PROPERTY
First Amendment Auditors: Citizen Oversight or Harassment? Derek Rooney, Lori A. Tetreault, Esq. Esq. GRAY|ROBINSON ATTORNEYS AT LAW
“First Amendment Audits [are]... an American social movement of activism and citizen journalism claiming to test constitutional rights; in particular the right to photograph and video record in a public space. Auditors also claim that the movement promotes transparency and open government. . . . ” WIKIPEDIA CONTRIBUTORS. "FIRST AMENDMENT AUDITS." WIKIPEDIA, THE FREE ENCYCLOPEDIA . WIKIPEDIA, THE FREE ENCYCLOPEDIA, 29 APR. 2019. WEB. 6 MAY. 2019 ( FOOTNOTES OMITTE D).
“ However, audits are often confrontational in nature .” Wikipedia contributors. "First Amendment audits." Wikipedia, The Free Encyclopedia . Wikipedia, The Free Encyclopedia, 29 Apr. 2019. Web. 6 May. 2019 ( Footnotes omitte d).
Motivations ▪ Honest desires to hold government accountable. ▪ Political and personal resentment. ▪ “The search for relevance. ” - Charlotte County Sherriff Bill Prummell
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Political Prisoner Political Prisoner News Now News Now Hate the State Hate the State 12,804 12,804 California California 12,799 12,799 39,291 39,291 Y bo r R o b Injus tice Ybor Rob San Joaquin Valley San Joaquin Valley W atch-F lo rida Honor Your Oath Civil Rights Injustice Watch- Honor Your Oath Civil Rights Transparency Transparency Investigations Investigations A cco u ntability Florida 68,758 68,758 97,116 97,116 11,774 Accountability 11,774 SGV News First SGV News First James Freeman News James Freeman News 38,326 38,326 First Amendment Strike Team First Amendment Strike Team 35,347 35,347 10,226 10,226
▪ YouTube Partner Program ▪ Affiliate Links ▪ Fan Funding – Subscriptions ▪ Subject to “ Community Guidelines ”
First Amendment Speech & Expression: WHAT IS PROTECTED AND WHERE
Traditional Public Forum Forums Designated Public Forum Non-Public Fourm
Traditional Public Forum
Traditional Public Forum Regulation must be “narrowly tailored to serve a significant government interest”, be “viewpoint - neutral” and “leave open ample avenues for alternative expression” Subject to “reasonable time, place and manner restrictions” within these parameters.
Designated / Limited Public Forum ▪ Intentionally opened up to the public for limited expressive activities. ▪ Also subject to “strict scrutiny” and “reasonable time, place, and manner restrictions. ” ▪ Commission Chambers, Facebook, fairgrounds, multi-purpose rooms, convention centers, etc.
Non-Public Forum ▪ Places that have not historically been used for assembly, communication, and discussion. ▪ Airport terminals, military bases, prisons, backroom offices, and polling places. ▪ Restrictions need only be “reasonable” in light of the purpose and designated use, and “viewpoint neutral.”
Government Ownership of Property ▪ Government ownership of property does not automatically open that property to all public uses. ▪ Constitutional restrictions on public access and use are dependent upon the type of forum. ▪ Governments have the right to designate their property for specific uses. ▪ Governments have the right to proscribe uses inconsistent with those designations.
Don’t film me!
First Amendment Auditors Claim: 1. All government employees are “public officials”; 2. Every government-owned place regardless of use is “public property”; and 3. Everything employees do is “a matter of public interest.”
Isn’t video and audiotaping the public without consent a crime? For IN-PERSON interactions, it is NOT A CRIME to audio or videotape someone without their consent where there is “NO REASONABLE EXPECTATION OF PRIVACY. ” ss. 810.145 and 934.03, Fla. Stat.
So what are Auditors Constitutional Rights?
You’re Making Me Uncomfortable!
Smith v. City of Cummings , , 212 F.3d. 1332 (11 th Cir. 2000), cert denied. ▪ Smiths owned a shopping center in Georgia. ▪ Smiths’ believed they were being persecuted by police and began to videotape their interactions and then generally police conduct in public. ▪ Police concerned for their physical safety because they didn’t know the Smiths’ motivations.
Smith v. City of Cummings , , 212 F.3d. 1332 (11 th Cir. 2000), cert denied. “The First Amendment protects the right to gather information about what public officials do on public property, and specifically, a right to record matters of public interest. ”
IMPORTANTLY: The Cummings Court held that the right to gather information is subject to “Reasonable time, manner and place restrictions.”
Unanswered Questions: 1. Who is a “public official”? 2. What sort of “public property”? 3. What are “matters of public interest”
Who is a “Public Official”? ▪ Statutory and case law provides guidance but which standards will be used? ▪ “Public Officials” typically have authority conferred by law and power to exercise sovereign functions.
Who are County “Public Officials”? ▪ Commissioners? County Administrator? ▪ Special Magistrates? County Attorney? ▪ Code Enforcement Officers? Building Official? ▪ Animal Control Officers? ▪ Private Citizens?
What sort of “Public Property”? ▪ Traditional Public Forums? ▪ Designated Public Forums? ▪ Non-Public Forums?
What are “Matters of Public Interest” ▪ Board Meetings? ▪ Public Hearings? ▪ Public appearances? ▪ Personnel matters? ▪ Kids at a public park?
Charlotte County Case Study
Name: Ian McGuire (aka Chicken Man) Occupation: Freelance Journalist / YouTuber Channel: HATETHESTATE (fmr. sotheycallitfreedom) Affiliates: charlottecountyflcopwatch, eyesonthestate, livefreeordiepeople, internalaffairscorruption.
SO HOW DO YOU REGULATE DISRUPTIVE VIDEOTAPING? ▪ Determine the nature of your forums. ▪ Impose “ reasonable time, place and manner restrictions ” consistent with the type of forum. ▪ Codify your rules (ordinance, resolution, policy, website) somewhere that is publicly accessible. ▪ Designate “ EMPLOYEES ONLY ” areas.
Trespass from Public Property 1. Chapter 810, Fla. Stat . 2. Catron v. City of St. Petersburg , 658 F.3d 1260 (11 th Cir. 2011)
Catron v. City of St. Petersburg ▪ Challenge to the City’s Trespass Ordinance under 42 USC §1983, which authorized City employees to issue trespass warnings under certain circumstances and for up to 2 years. ▪ If a trespassed individual returned after warning, he or she would be subject to arrest. ▪ Did provide a way for a trespassed individual to obtain permission to enter the property for official government business but NOT a procedure to challenge issuance.
Catron v. City of St. Petersburg 11 th Circuit Held: ▪ Constitutionally protected “ liberty interest ” to be on City property otherwise open to the public. ▪ 14 th Amendment Due Process Clause requires that “deprivation” of liberty interest (e.g., by trespass) requires due process. ▪ Procedural due process requires notice and opportunity for a hearing. ▪ Hearing may be post-deprivation.
Charlotte County’s Trespass Ordinance ▪ Authority to issue a Trespass Warning is ▪ 10 day right to appeal (request a hearing) limited to the County before a Special Magistrate. Administrator/designee. ▪ Trespass Warning remains in effect pending ▪ Incorporates “ Facility Rules ”, setting forth specific behaviors that are prohibited and appeal. where. ▪ Quasi-judicial public hearing. ▪ Trespass Warning must state the reason for the trespass warning and the facility address. ▪ Must be scheduled within 7 days and held ▪ Effective for 1 year. within 30 days. ▪ Provides a means to enter onto County ▪ Special Magistrate must rule within 7 days. property to conduct official business when necessary. ▪ Subject to judicial review.
Tools for Containing Auditor Disruption ▪ Train front-line employees on ▪ Develop reasonable time, how to handle confrontational place and manner restrictions “Auditors”. appropriate to your forums. ▪ Talk to your Sheriff(s), seek ▪ Designate “Employees Only” their views and assistance. areas and post signs. ▪ Increase security protocols. ▪ Consider passing a TRESPASS ORDINANCE. ▪ Define your forums!!
Tools for Containing Auditor Disruption ▪ Social Media Complaint Processes. ▪ §784.048, et seq., Fla. Stat . (Stalking or cyberstalking). ▪ §540.08, Fla. Stat . (Unauthorized publication of name or likeness). ▪ Restraining Orders/Injunctions. ▪ §817.568, Fla. Stat . (Criminal use of ▪ Be careful about the public records personal identification information) you create – Auditors know about the or §817.569, Fla. Stat . (Criminal use Public Records Act, too! of public record or public records information).
Bye Mr. Philbin!! !!
QUESTIONS?
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