GOVERNMENT INFORMATION LETTER ABOUT WHAT WE DO : A “First Amendment audit” is normally conducted by one or two people who intend to record their interactions with government officials – most often employees at a city/town hall or a police department – to ensure that the First Amendment right to record in public is preserved. Many auditors draw income from creating and posting audit recordings to online platforms, most frequently YouTube, for public consumption and notoriety. The more interactive or argumentative the audit, the greater the draw and potential income for the auditor. In the worst scenarios, something happens during the audit that provides the impetus for the auditor to file a lawsuit alleging a violation of their First Amendment rights, or even false arrest.

What can government employees do to protect themselves and their municipality?

• Do not challenge recording that is taking place in areas that are open to the public. If the public can be present in a space, room, or office, a member of the public can also record in that space. There are a few exceptions for areas where there is a clear expectation of privacy, such as a rest room or locker room.

  • Permitted access includes filming into vehicles: if a parking area is open to the public, an auditor can be in that area and can record through a window.

  • Many auditors obtain valuable video when they film police vehicles or private vehicles of police officers and get a negative reaction from employees. If the parking area is open to the public, meaning not fenced or clearly delineated with “Employees Only, No Entry” or similar signage, an auditor may be present and record.

  • Be prepared by positioning computer screens to face away from public view and turning over or covering sensitive documents when any member of the public is present.

• Ask the auditor if you can assist them. If they refuse assistance but continue to explore and record in public areas, do not try to interrupt or stop them.

• An audit often feels uncomfortable, so government officials must remind themselves that recording may take place in any public space. This includes the lobby of a city/town hall, the lobby of a police station, and any unposted public property around municipal buildings. Recording may take place through a window as long as it does not violate the voyeurism law. Recordings may be made of items and documents posted in these public spaces.

• Answer questions that appear to be about information that the public has the right to know about. For example, names of employees and their positions.

• Have a clear understanding of the Vermont Public Records Act.

  • When in doubt, confer with the senior municipal official in your city/town and the city/town attorney.

  • Requestors are not obligated to identify themselves or to give a reason for their records request.

    • If someone refuses to identify themselves, ask to schedule a date and time for them to return to either obtain the requested records or receive a status update on their request. You can also suggest that they phone you at a predetermined date and time.

A First Amendment audit that goes well is rarely seen in public and is a boon to the municipality for being cognizant of, and supporting, First Amendment rights. Any lack of controversy or perceived overreach by a government official is not newsworthy and is generally not posted.

Conducting a YouTube search for “First Amendment Audit” will provide a multitude of videos that may be informative. Additional guidance includes:

1st Amendment auditors make police walk the line between enforcement, constitutionality People near Fair Drive and Newport Boulevard in Costa Mesa on the afternoon of June 28 may have witnessed an unsettling scene as police officers approached a lone individual with guns drawn, calling out orders over a loudspeaker.

The subject sat on the ground near an entrance to the Orange County fairgrounds as he was instructed to keep his hands visible and the amplified voice advised him to comply with all commands.

Later, when a Costa Mesa police officer asked for his name, the man refused to provide it.

“Once I’m placed under arrest for a crime I will provide my information,” he shouted back. “Until that point, I don’t have to give you jack s—.”

The two argued for a short time until the man was eventually released. Costa Mesa Police Department spokeswoman Roxi Fyad said in a June 30 interview officers received a call about a suspicious male walking around near Vanguard University and the fairgrounds with some kind of device in a holster on his hip.

Costa Mesa police officers on June 28 detained an individual outside the O.C. fairgrounds in Costa Mesa.(Brittini Raffi Decker)

“We responded, believing he had a gun in that holster,” she said. “It took time to determine what he had on him was a civilian taser. We tried to get his information, and he refused to give that to us so, ultimately, we had to end that contact and let him go.”

Within a few days, an edited video of the incident titled, “I thought my time on Earth was over” appeared all over Costa Mesa Police Department’s Facebook page as comments to department posts on fireworks safety or recent accomplishments.

A litany of critical comments about the department followed, though none of the commenters have apparent ties to the city of Costa Mesa and none responded to a request for an interview and the opportunity to explain their viewpoints.

Meanwhile, a full 46-minute video of that June 28 confrontation in Costa Mesa has amassed 32,438 views on YouTube, where people can subscribe to watch similar content provided by the poster.

A Fountain Valley officer at a crime scene is filmed by two 1st Amendment auditors in a 2017 video posted on YouTube.(Courtesy of the Fountain Valley Police Department)

Such behavior is not uncommon in Orange County, where local law enforcement officials can describe any number of encounters with individuals arriving at crime scenes, DUI checkpoints or even inside police department lobbies — cameras in hand — waiting to capture a 1st Amendment violation.

They call themselves 1st Amendment auditors, people who test the constitutional knowledge of government employees or police officers and then post the results on social media and in YouTube channels that can have hundreds of thousands of followers and where content is monetized and contain advertisements. Posters may also perform “audits” related to 2nd Amendment rights, by carrying a legal firearm in public, or other legally protected rights.

Brian Levin, director of Cal State San Bernardino’s Center on Hate and Extremism, said citizens have the right to be in and record videos in public, so long as they are not loitering, trespassing or committing disorderly conduct.

But the trend of putting recordings before a wide audience on social media, often with rhetoric regarding the video’s subjects, is more recent. And the motives of the filmmakers vary.

“Some people are opportunists out for social media grandiosity,” Levin said Thursday. “There are others who really believe they are establishing the parameters of how far the government can go with respect to people’s presence in particular situations, even if it’s an annoying presence.”

A Fountain Valley police officer engages with an individual filming a DUI checkpoint in a video posted to YouTube in 2017. (Courtesy of the Fountain Valley Police Department)

Sgt. Josh Vincelet works in internal affairs and professional standards for the Newport Beach Police Department, which began experiencing a rise in auditing behavior about five years ago. Agencies now train officers how to walk the line between diffusing tense situations and respecting constitutional rights.

“There’s intelligence sharing between different agencies because these people will go to multiple cities,” he said. “At a very basic level, officers are taught these constitutional rights in the academy. But it’s just about educating them — understanding where these people are allowed to be and what they’re allowed to do.”

Vincelet said most auditors are not local and use pseudonyms. He advised locals to educate themselves about such behaviors, so they can understand the potential for risk and avoid escalating a situation should it happen to them.

“I wouldn’t confront them — allow a law enforcement officer to do that,” he said. “And if you see something suspicious, just call.”

Representatives from other law enforcement agencies, including the Orange County Sheriff’s Department, Fountain Valley and Laguna Beach police departments all said they’d had experience with 1st Amendment auditors in recent years. Huntington Beach officials said the practice is rare but has happened there.

Numerous videos of filmmakers interacting with Fountain Valley police personnel are posted to YouTube, some with a note indicating officers “passed” a particular audit. In one video, a woman asks police why a man is recording her. The officer replies, “I don’t know, but he’s allowed to record here.”

Laguna Beach Police Lt. Cornelius Ashton said his department rarely encounters provocateurs but knows what to do when they come around.

“We don’t confront them,” he said Thursday. “We don’t want to violate anyone’s 1st Amendment rights. [But] we’ve trained from watching other agencies, so when someone comes in with a camera, we know what’s going on.”

Levin, a former New York City police officer, said while most filming is conducted largely within the limits of the law, certain situations can put innocent people, even the auditors themselves, at risk.

In 2019, a self-proclaimed auditor and YouTube personality Zhoie Perez got into an altercation that provoked a security guard at a Los Angeles synagogue to fire a shot that grazed her leg.

Given the current polarization of the nation, and the rise of people intentionally causing friction at public meetings and gatherings, Levin said the antics of auditors, while legal, only serve to crank up the heat.

“It’s really important we preserve a fundamental right to free expression and presence in public places, but this is not the way to do it,” he said. “This just adds another wrinkle to an already fraught and polarized time.”