A member in East Tennessee recently had an encounter a self-proclaimed “First Amendment auditor.” Some of you may already be familiar with these individuals; others may encounter one in the future. It is critical that you and your staff understand these situations and know how to respond appropriately.
These encounters may be intended to create a “gotcha” moment. While certain interactions may seem harmless, or even unreasonable, remaining professional and preparing is essential. Getting it right the first-time matters.
A First Amendment auditor is a person who photographs or records public employees, facilities, or government activities to test whether officials respect constitutional rights. “Auditor” is a self-selected label, not a government appointment or credential. Some seek accountability and some seek attention. Motives do not determine their rights.
A calm, consistent response allows lawful recording while keeping services operating and enforcing legitimate boundaries.
Know where the legal boundaries are
Recording government activity can be constitutionally protected, especially police performing duties in public. This may feel wrong but without preparation you could be in violation of the law. A publicly owned building is not automatically open for unrestricted entry or filming but, access determinations should be made prior to an audit. Sidewalks, service lobbies, employee workspaces, schools, and courtrooms all have different rules. If it is an accessible area like a health department, though not immediately, offer a scheduled time before or after treatment hours.
Please have counsel review access and recording policies for each location, including state audio-recording and open-meetings laws. A posted sign alone does not make restrictions lawful. Rules must meet the applicable constitutional standard and be applied consistently.
Prepare before a visit
Give employees a response plan. Train reception staff, department heads, security, and backup personnel. Designate one supervisor to answer policy questions. Practice brief, courteous responses and create an escalation contact list.
Make boundaries clear. Identify public service areas and legitimately restricted spaces. Use counsel-reviewed signs, doors, and access controls consistently. Do not create a new restriction simply because a camera appears. Do not assume invoking HIPAA or another confidentiality law automatically prohibits a visitor or filming.
When an auditor arrives
Greet the person normally and help. Assume comments may be recorded and published. Do not demand identification or press credentials merely because someone is filming. Refer any identification requirement to a supervisor who can confirm a valid legal basis. Do not condition routine service on stopping lawful recording.
A camera, criticism, profanity, or a refusal to answer voluntary questions does not, by itself, establish a crime or justify removal. Discomfort with filming is different from actual interference. Employees should not grab a person or camera, block a lens, seize a phone, demand deletion of footage, threaten arrest, or physically remove someone over a filming dispute.
After the visit
Document what happened. Record the time, location, conduct, exact threats or instructions, witnesses, and any effect on services. Route records requests through the normal process and applicable deadlines.
An auditor’s status, even if from out of state, neither eliminates access rights nor creates special entitlement to immediate production.
This is general educational guidance, not legal advice. Please have your attorney confirm current state law, controlling court decisions, and facility-specific requirements before adopting or enforcing a policy.