Trident – Risk Control Best Practices: First Amendment Auditors

First Amendment Auditors Confronting Public Officials

Armed with a cellphone camera and a social media account, anyone can open a situation for public record at the touch of a button. Doing this while confronting you as a public official can make them a First Amendment Auditor.

The First Amendment to the United States Constitution

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Over the years, what is considered “speech” has expanded to include recording public officials and employees in public spaces. (See, for example, Fields v. City of Philadelphia, 862 F.3d 353, 354 (3rd Cir. 2017))

So, what exactly is the purpose of a First Amendment Auditor?

“Auditors” use recording devices to film public employees, often provoking confrontations to gain social media attention and monetize their content. They aim to generate clicks or provoke legal violations of First Amendment rights. They test acceptable behavior by asking questions and commenting on employees’ tasks to elicit frustrated reactions while appearing calm.

So, what should you do when confronted by a First Amendment Auditor?

Check the white paper for ideas on de-escalating situations with First Amendment auditors.

Calmly going about your business is the best defense against finding yourself on the wrong end of a YouTube video. Once the First Amendment auditor determines that they are unlikely to get a viral moment where they are, they will probably move on down the road.

For any questions, ask the risk manager.