Citizen Oversight or Harassment? EXERCISE OF FIRST AMENDMENT - - PowerPoint PPT Presentation
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
EXERCISE OF FIRST AMENDMENT RIGHTS ON PUBLIC PROPERTY
First Amendment Auditors: Citizen Oversight or Harassment? Derek Rooney, Esq.
GRAY|ROBINSON
ATTORNEYS AT LAW
Lori A. Tetreault, Esq.
“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 OMITTED).
“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 omitted).
▪ Honest desires to hold government accountable. ▪ Political and personal resentment. ▪ “The search for relevance.”
Hate the State
12,799
Y bo r R
tice W atch-F lo rida A cco u ntability
11,774
SGV News First
35,347 James Freeman News 38,326
News Now California
39,291 First Amendment Strike Team 10,226
San Joaquin Valley Transparency
97,116
Political Prisoner
12,804 Honor Your Oath Civil Rights Investigations 68,758
Hate the State
12,799
Ybor Rob Injustice Watch- Florida Accountability
11,774
SGV News First
35,347 James Freeman News 38,326
News Now California
39,291 First Amendment Strike Team 10,226
San Joaquin Valley Transparency
97,116
Political Prisoner
12,804 Honor Your Oath Civil Rights Investigations 68,758
▪ YouTube Partner Program ▪ Affiliate Links ▪ Fan Funding – Subscriptions ▪ Subject to “Community Guidelines”
WHAT IS PROTECTED AND WHERE
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.
▪ 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.
▪ Places that have not historically been used for assembly, communication, and discussion. ▪ Airport terminals, military bases, prisons, backroom
▪ Restrictions need only be “reasonable” in light of the purpose and designated use, and “viewpoint neutral.”
▪ Government
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.
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.”
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.
212 F.3d. 1332 (11th 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.
212 F.3d. 1332 (11th 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.”
The Cummings Court held that the right to gather information is subject to
▪ 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.
▪ Commissioners? County Administrator? ▪ Special Magistrates? County Attorney? ▪ Code Enforcement Officers? Building Official? ▪ Animal Control Officers? ▪ Private Citizens?
▪ Traditional Public Forums? ▪ Designated Public Forums? ▪ Non-Public Forums?
▪ Board Meetings? ▪ Public Hearings? ▪ Public appearances? ▪ Personnel matters? ▪ Kids at a public park?
Name: Ian McGuire (aka Chicken Man) Occupation: Freelance Journalist / YouTuber Channel: HATETHESTATE (fmr. sotheycallitfreedom) Affiliates: charlottecountyflcopwatch, eyesonthestate, livefreeordiepeople, internalaffairscorruption.
▪ 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.
1260 (11th Cir. 2011)
▪ 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.
11th Circuit Held:
▪ Constitutionally protected “liberty interest” to be on City property otherwise open to the public. ▪ 14th 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.
▪ Authority to issue a Trespass Warning is limited to the County Administrator/designee. ▪ Incorporates “Facility Rules”, setting forth specific behaviors that are prohibited and where. ▪ Trespass Warning must state the reason for the trespass warning and the facility address. ▪ Effective for 1 year. ▪ Provides a means to enter onto County property to conduct official business when necessary. ▪ 10 day right to appeal (request a hearing) before a Special Magistrate. ▪ Trespass Warning remains in effect pending appeal. ▪ Quasi-judicial public hearing. ▪ Must be scheduled within 7 days and held within 30 days. ▪ Special Magistrate must rule within 7 days. ▪ Subject to judicial review.
▪ Train front-line employees on how to handle confrontational “Auditors”. ▪ Talk to your Sheriff(s), seek their views and assistance. ▪ Increase security protocols. ▪ Define your forums!! ▪ Develop reasonable time, place and manner restrictions appropriate to your forums. ▪ Designate “Employees Only” areas and post signs. ▪ Consider passing a TRESPASS ORDINANCE.
▪ Social Media Complaint Processes. ▪ §540.08, Fla. Stat. (Unauthorized publication of name or likeness). ▪ §817.568, Fla. Stat. (Criminal use of personal identification information)
information). ▪ §784.048, et seq., Fla. Stat. (Stalking
▪ Restraining Orders/Injunctions. ▪ Be careful about the public records you create – Auditors know about the Public Records Act, too!