First Amendment Auditors have become increasingly popular in recent years, but what or who is a First Amendment Auditor? These individuals are usually activists or citizen journalists who target government facilities, employees, or events. Auditors will typically record the encounters and broadcast them on YouTube or other social media platforms and ask questions or demand answers of their target. The primary goal of auditors is to provoke a reaction or response, catch the interaction on camera, publicize the interaction on social media for views, and create circumstances to bring a lawsuit.

Auditors, and members of the public generally, have the right to free speech, including the right to protest, record in public, and otherwise speak on matters of public concern. Likewise, the government also has an interest in running safe and efficient operations.  The government must balance these two rights when dealing with First Amendment Auditors.

It is imperative that public employers prepare supervisors and employees on how to respond to First Amendment Auditors. Below are the tools that can used for preparing and responding to First Amendment auditors:

  • Knowing how to recognize auditors.
  • Ensuring that public versus private areas of buildings are clearly marked.
  • Educating employees, establishing guidelines in the workplace, and ensuring that police personnel are readily prepared for out-of-building auditor encounters.
  • Consult with your attorney and make sure employees know the law and know their rights.
  • When in doubt, contact law enforcement.

When responding to auditors:

  • Do not overreact and acknowledge their First Amendment right to record.
  • Be prepared to be provoked.
  • Know when to ask for help from a worker/supervisor.
  • Keep the interaction short and then continue business as usual.
  • Understand that anything you do and say might end up on YouTube, Facebook, or in a First Amendment lawsuit.

Remember, when interacting with First Amendment Auditors, there are limitations on your response. Public entities must allow auditors to stay and record as long as they are in a public space, they are not disrupting any public service, and not partaking in physical altercations or threats. However, auditors can be forced to leave if they are attempting to access non-public spaces, disturbing public services, or are physically threatening employees or other individuals.

Every First Amendment Auditor encounter is unique and fact specific.  The attorneys at Fishel Downey regularly advise employers on issues related to First Amendment Auditors and constitutional questions in the workplace. If you have a specific question or scenario, and would like assistance, contact one of the attorneys at Fishel Downey Albrecht & Riepenhoff LLP at 614-221-1216.