In Akron, several local businesses and government agencies have interacted with citizens who test the strength of the U.S. Constitution.
by Jennifer Conn , Troy Pierson and Harrison Hamm June 24, 2024 June 24, 2024
It might be puzzling to witness someone in Akron recording video of seemingly nothing in particular as they stand inside or outside a police station, library, city hall, some other public building or even a private business.
Meet First Amendment auditors.
Who are they? What’s their purpose and expected outcome? Answers vary depending on who you ask. What is known: These everyday citizens are testing the strength of First Amendment rights. Even if it upsets people.
After First Amendment auditors made recent appearances around downtown Akron and the Akron Police Department discussed them at Ward 6 (May 16) and Ward 2 (May 29) meetings covered by our Akron Documenters, Signal Akron decided to ask First Amendment and legal experts about the phenomenon, as well as a local auditor.
Are they courageous protectors of the U.S. Constitution or provocateurs?
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First Amendment auditors are people who film in and around public spaces — including government buildings — in order to test (or audit) local, state or federal government adherence to freedom of the press, which protects the right to gather information and report it to others. Auditors are part of a loosely organized political movement that advocates for First Amendment rights.
“The ranks of professional journalism have been thinned out dramatically in the United States, and so we actually really do rely on citizens to document and expose and amplify,” said Kelly McBride, a senior vice president at the Poynter Institute and a leading voice on journalism ethics.
“We’ve given citizens the tools where they can amplify information themselves. And I think that’s great.”
By definition, auditors want to protect the First Amendment. To do this, they attempt to confirm that government workers — for example, in the lobbies of courthouses, post offices and police departments — abide by the First Amendment when approached by an individual with a camera.
“If you don’t use your rights, you’re going to lose them,” said Stephen Kelley, who operates under the name Lemmy Audit You.
“You see that often, people will strip away your rights,” Kelley continued. “That’s why we’re First Amendment auditors.”
The First Amendment is complex and open to interpretation. Meanwhile, some auditors push legal limits with what some have subjectively described as aggressive tactics.
Crave General Manager Aaron Francis explained how a recent interaction with four First Amendment auditors negatively impacted his downtown restaurant.
Standing outside the building, on a public sidewalk, auditors placed recording devices against or near windows, pointed in the direction of patrons inside.
“For the guests, they found it very rude and intrusive,” Francis said. “To the point that it made them want to move tables because they felt awkward.”
Guests asked to be moved immediately.
“And once one moves,” Francis added, “another one moves, and then I lose an entire part of my dining room that I can’t seat because no one wants to be there.”
There was also a heated, non-physical debate about what was considered public versus private property: Crave rents a section of the S. Main Street sidewalk from the city. The patio area is closed off.
If an auditor is filming patrons at a restaurant, Kopp said, restaurant management has the right to ask that person to stop filming because part of its obligation as an eatery is to protect patrons’ reasonable expectation of privacy.
For Francis, it’s less about what’s legal than what’s reasonable. He said downtown eateries, in general, already struggle to draw patrons outside of special events.
Said Kelley: “I have a right to film whatever you see in public. I’m not gonna follow around kids, I’m not going to follow anybody around, unless it’s somebody who attacked me. I’ve been attacked multiple times. I try to keep my distance from people and not get in their space. … You don’t have to [be a jerk].
“There’s times where I may go overboard a little bit. But people get you angry when they’re getting in your face. We’re all human. It’s not easy when you’ve dealt with a lot of angry people in a day.”
The question of whether First Amendment audits are legal, whether inside or outside public spaces, covers a lot of gray areas and often depends on the actions of the auditors themselves.
The First Amendment was written to deny the government’s right to pass laws that infringe on free speech, free press and other rights.
But there are many exceptions. For a well-known example, Ronald Kopp, a First Amendment law expert and attorney at Roetzel & Andress, points to U.S. Supreme Court Justice Oliver Wendell Holmes, who more than a century ago noted it’s by no means legal to shout “Fire!” in a public space when there is no fire.
However, for the most part, when police officers are being filmed, they are in a public space performing a public function.
“So generally speaking,” Kopp said, “there is nothing unlawful about videotaping a police officer doing his or her job.” But, he added, reasonable expectations pertain to public spaces.
For example, Kopp said a police station is a public space, but someone randomly shooting video inside a station could risk the safety of undercover detectives or incriminate people who have been arrested but not found guilty. In these examples, police would be within their rights to ask someone to stop filming.
As public entities, cities also can set forth reasonable expectations that impact citizens’ rights, such as requiring a permit be issued for citizens staging a demonstration or march on public property. And although an expectation of privacy is not explicitly written in the First Amendment, it bears weight.
The public-private distinction comes down to a “reasonable expectation of privacy,” a doctrine outlined by the U.S. Supreme Court in a case that had to do with unlawful search and seizure. Filming is allowed in a situation where an individual could not reasonably expect privacy — such as on a public street or park, or in a public establishment such as a restaurant.
The First Amendment, however, only protects filming in government buildings and outdoors in public spaces. That means a restaurant owner, for instance, can tell an auditor to stop filming.
In a government building, auditors are within their rights to film into a window toward a non-public area as long as they’re standing in a spot where filming is allowed. But they cannot use their camera’s zoom function to spotlight, for example, a private document behind a desk that would not have been clearly visible to the human eye.
Prominent auditors across the United States have gained lucrative followings due to viral, contentious interactions with public employees, often posted on YouTube channels. Known as “cop watchers,” the more aggressive auditors can earn upwards of $150,000 per month from subscribers and donations, according to a 2023 Washington Post article. One such channel, “Audit the Audit,” dedicated to auditing police, now counts 2.7 million subscribers.
An uneventful audit is akin to passing a test: Auditors are allowed to film in (legal) public spaces without interruption from officials.
During an unsuccessful or confrontational audit, a government official may tell them to leave or stop filming, even though filming in public areas is legal.
While many successful and unsuccessful audits are nonviolent and uneventful, some encounters across the nation have escalated, resulting in arrest and litigation.
Municipalities across the country have picked up on the presence of auditors. In some cases, they’ve released guidance for government officials on how to deal with them. Advice includes remaining calm, avoiding confrontation and understanding which areas of the building are off limits for filming. Other tactics are more adversarial but not physical.
During a Ward 6 meeting on May 16, an Akron police officer described First Amendment auditors as people who exercise their constitutional rights on public land in a way that tends to provoke, scare or upset the public.
To be fair, what scares one person doesn’t bother another. Also, scary doesn’t mean illegal.
Universally, anyone facing an audit is encouraged to remain calm and not react, even when asking an auditor to leave the property.
“The best way to respond is in as polite a manner as possible,” Kopp said.
Police officers are especially encouraged to avoid confrontation, in part, by not touching cameras and recording equipment, according to Jack R. Gates on the American Police Beat website.
Blurry motives — somewhere between activism and social media recognition — separate auditors from journalists, said the Poynter Institute’s McBride.
“The expectation [for a journalist] is that you’re a professional, you’re representing this newsroom, you’ll do it in a manner that’s civil,” McBride said. “And I think that if you start out in an uncivil way, you don’t win over a lot of fans and you tend to undermine the support that you’re seeking.”
Professional journalists are also bound by principles and codes of ethics. They are trained to understand the law as well as ethical implications of how they conduct themselves when interacting with the public. This includes provoking or baiting sources (although this is also subjective), especially private citizens.
Journalists commonly give notice before entering an establishment to shoot video and photos, primarily as a means of maintaining healthy working relationships between the news outlet and the entities it covers.
Still, there is a phenomenon known as community journalism, which is related to but different from the craft taught and practiced at most local and national journalism outlets.
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