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Thursday, December 26, 2019

First Amendment Audits

A guest blog by Amber Eisenschenk, League of Minnesota Cities Research Manager.

Minnesota cities have seen an uptick in First Amendment audits recently. A First Amendment audit is often done when one or two people with video cameras or smartphones enter city property to see if the city allows them on public property or if the police force them to leave. The video is usually livestreamed on YouTube and shared with a network of followers. This can catch city employees by surprise and make some feel uneasy about security.

To help your city understand First Amendment audits, we’ve answered some common questions you might have:

Q: Can auditors come into city hall and record whatever they want?
A: Individuals can record whatever they like when they have a lawful right to be there. For example, during business hours, a person may come into city hall and record from spaces that any member of the public would normally be allowed to be in.

Q: Can the city restrict access to parts of our building?
A: First Amendment auditors have the right to enter public buildings and should have the same access as any other member of the public. We do encourage cities to consider public access and security before you are visited by auditors. Considering where the public should have access to within your city buildings is a city-specific decision. You can consult with a League of Minnesota Cities Insurance Trust (LMCIT) loss control representative about this type of security. Having “staff only” areas that are restricted by signs or locked doors is likely a good practice. If your building has meeting rooms, you may also want to consider keeping those locked when not in use as a general safety precaution.

Q: I don’t want to be recorded. Can I tell them to stop recording me? 
A: No. As a public employee working in a public place, you may be recorded. It is common for the auditors to want to know your name and job title. This is public information and you should give it to them. If you respond quickly and professionally, they often move on faster. When you hesitate to give a First Amendment auditor public data, or ask why they want it, that often leads them to stay longer. If you have concerns about this, please speak to your supervisor.

Q: Can I record them back?
A: This is probably not a good tactic. As a city employee, that would likely be creating government data.

Q: Should I call the police? 
A: It is not illegal for people to record in a public place. If there is other behavior that is threatening, follow city policies for notifying law enforcement about your concerns.

Q: Are they allowed to record outside our buildings and in our parking lots?
A: Unless the city has restricted access, those areas are public, and they may record. Common ways to restrict access to an outside area include the usage of signs and/or locked fences.

Do you want more information on First Amendment audits? Submit your questions on the League’s website.

Up Next: Q&A with Our Human Resources Staff on Handling Internal Complaints

Stay safe and happy holidays,
Rob

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