First Amendment Auditing.com
A resource for auditors and others who are interested
First Amendment of the U.S. Constitution: 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.
Definition of First Amendment Auditing: The practice of exercising one's constitutional right to record video for the purpose of educating anyone who attempts to infringe that right and commending those who respect it.
A successful audit is one in which the auditor is treated the same as they would be treated without a camera.
Many people also consider audits to be successful if security or law enforcement are called, with only minor questioning before the called party leaves.
Note: I am not a lawyer. It is important to consult an attorney who is familiar with this area of law and the jurisdiction where auditing will take place. I have attempted to compile useful information. However, rulings and laws may be applicable only in specific jurisdictions. They may be outdated. They may be open to alternative interpretations. Or, they may simply be wrong. Send corrections/additional information to info@FirstAmendmentAuditing.com.
See statement above. Being in this section does not mean you can rely on this information in your jurisdiction -- or any jurisdiction.
• Freedom of the press includes the right to record video and audio
The act of making an audio or audiovisual recording is necessarily included within the First Amendment's guarantee of speech and press rights as a corollary of the right to disseminate the resulting recording. The right to publish or broadcast an audio or audiovisual recording would be insecure, or largely ineffective, if the antecedent act of making the recording is wholly unprotected.
• Credentials are not needed to be considered press in the context of the First Amendment
The press, in its historic connotation, comprehends every sort of publication which affords a vehicle of information and opinion.
It has generally been held that the First Amendment does not guarantee the press a constitutional right of special access to information not available to the public generally.
...liberty of the press is the right of the lonely pamphleteer who uses carbon paper or a mimeograph just as much as of the large metropolitan publisher who utilizes the latest photocomposition methods.
• Recording police and other government officials in the discharge of their duties is explicitly allowed
In summary, though not unqualified, a citizen's right to film government officials, including law enforcement officers, in the discharge of their duties in a public space is a basic, vital, and well-established liberty safeguarded by the First Amendment.
• If arrested, a cell phone may not be searched without a warrant
Our holding, of course, is not that the information on a cell phone is immune from search; it is instead that a warrant is generally required before such a search, even when a cell phone is seized incident to arrest.
• Prior to detaining anyone, law enforcement must have a particularized and objective basis for suspecting the particular person of criminal activity
In determining what cause is sufficient to authorize police to stop a person, the totality of the circumstances -- the whole picture -- must be taken into account. Based upon that whole picture, the detaining officers must have a particularized and objective basis for suspecting the particular person stopped of criminal activity.
• Police are not required to state or document their basis for detaining anyone
If a complaint or legal claim is made for unlawful detainment, the officer's position is more easily challenged with the absence of contemporaneous notes. However, I am unable to find a statute or case law requiring such documentation. Please email me at info@FirstAmendmentAuditing.com if you have information on this topic.
• It is a crime for government officials to deprive anyone of their constitutional rights
It is a federal crime for a person acting under color of any law to willfully deprive a person of a right or privilege protected by the Constitution or laws of the United States.
Government bodies that have specifically addressed public video recording:
Visit the linked information for the full text of the statements.
The public has the right to photograph the exterior of federal facilities from public forums.
The public is allowed to photograph interior building entrances, lobbies, foyers, corridors and auditoriums from publicly accessible areas.
Members of the public, including media representatives, have an unambiguous First Amendment right to record officers in public places, as long as their actions do not interfere with the officer’s duties or the safety of officers or others. Officers should assume that they are being recorded at all times when on duty in a public space.
TSA does not prohibit photographing, videotaping or filming at security checkpoints, as long as the screening process is not interfered with or sensitive information is not revealed.
According to the TSA's website, sensitive security information should not include anything that is already visible to the public: Sensitive Security Information is information that, if publicly released, would be detrimental to transportation security.
Photographs for news purposes may be taken in entrances, lobbies, foyers, corridors, or auditoriums when used for public meetings except where prohibited by official signs or Security Force personnel or other authorized personnel or a federal court order or rule.
Topics still being researched
- Legal behavior, when taken as a whole, may be the basis for reasonably suspecting someone of criminal activity/detainment.
- Video recording alone is not grounds for detainment.
- Video recording is permitted in any public area.
- If the camera is left to record on its own (without a person present), is the right to record still constitutionally protected?
- Exceptions (polling places & courtrooms).
- Video recording may capture private property as long as it's visible from a location where someone may lawfully be.
- ID is not required to be provided unless an arrest is made.
- Exceptions (stop & ID states - just need reasonable, articulable suspicion of a crime).
- Is suspicion of trespassing a valid reason for detainment and ID?
- What differentiates commercial photography from news that is monetized?
- Videographers are not responsible for disorderly conduct / creating a disturbance based on others' reactions to lawful activity.
- Impeding movement / obstructing the view of a videographer is not permitted.
- Videographers may not be treated differently than people without a camera.
- HIPAA privacy regulations do not apply to the public. It is the responsibility of the caregiver to maintain privacy.
- Requirement of law enforcement to identify themselves when asked.
- Does the use of a zoom lens or parabolic microphone affect the legality of public recording?
- Can law enforcement initiate a trespass order without a prior request from a property owner?
- Is it legal for police to stop a recording if the videographer is detained or arrested?
- Is it permissible to be trespassed from an area that's open to the public solely for video recording?
- How do time, place, and manner restrictions affect public photography rights?
- How close to police may I get?
- May police run a license plate without probable cause a crime or traffic violation has occurred?
- When are police allowed to lie?
- What law covers retaliation against someone who exercises their constitutional rights?
- How to determine if an area is publicly accessible.
- How to determine where public easements are.
- How to make a complaint against a law enforcement officer.
- Must it be allowed to make a complaint anonymously?
- How to make a public records request.
- Must it be allowed to make a public records request anonymously?
- How to make a Freedom of Information Act (FOIA) request
- Must it be allowed to make a FOIA request anonymously?
- Is it harassment for police to follow you for an extended period of time?