Plan for How to Address Citizen ‘First Amendment Audits’

August 23, 2018

Around the country and in a handful of public entities in Minnesota, citizens have been conducting First Amendment “audits.” Typically these “audits” involve an individual recording a public area of a government building or law enforcement conduct. The apparent motive behind these citizen audits is to ascertain whether the government entity’s response and subsequent conduct is consistent with the individual’s rights under the First Amendment.

The federal court of appeals that issues opinions relative to alleged constitutional violations in Minnesota has not ruled on whether the act of recording a plainly visible government building or government employee action is speech that is protected by the First Amendment. There have been a few federal Minnesota District Court cases that have addressed this issue, recognizing First Amendment implications. For further information by example, see Kushner v. Buhta, 2018 WL 1866033 (D. Minn. April 2018, appeal pending) and Johnson v. McCarver 2017 WL 9618354 (D. Minn. Dec. 2017).

Many other courts around the United States have reviewed this question and have held that these “audits” are protected under the First Amendment right to free speech.

The government’s ability to regulate speech (in this case, an individual video recording) depends on where the speech is located. For example, government spaces that are open to the general public would likely be considered “public forums.” For public forums, a government entity may only enact reasonable time, place and manner restrictions on speech. These restrictions must be content neutral. In spaces that are not generally open to the public, such as an employee-only lunch room, the government entity may have greater ability to regulate speech.

MCIT recommends that a member’s administration discuss how to address a citizen First Amendment audit if it occurs and provide guidance and training to all employees and elected officials. Any guidance should be reviewed by the county attorney and/or other legal counsel prior to being enacted.

A Colorado risk sharing pool that is similar to MCIT has published “First Amendment Audits” Coming to Your Town? which may be helpful to MCIT members.

MCIT coverage routinely responds to claims for damages for constitutional violations. However, there are exclusions—including nonmonetary claims (such as an injunction requesting an order that the entity change a behavior) or claims arising from intentional conduct that is knowingly wrongful—that may preclude coverage. Members that receive a claim or believe a potential claim is forthcoming should contact MCIT toll-free at 1.866.547.6516 as soon as possible. As always, if MCIT can be of further assistance, please do not hesitate to contact us.