What is a First Amendment auditor?

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You may have run across a video by a First Amendment auditor on YouTube, TikTok, or a website. A First Amendment auditor, which they call themselves in these videos, is filming an encounter with public officials in a public space. They basically test public officials’ reactions to them filming in a public place.

In this article, I discuss the following:

What is a First Amendment auditor?

As a reminder, the First Amendment “provides that Congress make no law respecting an establishment of religion or prohibiting its free exercise. It protects freedom of speech, the press, assembly, and the right to petition the Government for a redress of grievances.”

So the auditors, who often call themselves independent journalists, test whether they can stand in a public space – usually a sidewalk, sometimes a public building – and record their surroundings. Some auditors – like the Long Island Audit channel, call themselves constitutional activists.

Sometimes they stand in a public space at a police station and wait to be approached. Other times, they film near a private company.

This is a similar approach to Sunshine Audits done in my print journalism days. A person enters a governmental agency, asks for a public record, and then sees how the employees react.

  • Are they professional?
  • Do they assist with the request?
  • Are they asking unnecessary questions?
  • Etc.

The video auditors take a page from that as well. Often, police officers in these videos immediately ask for identification, which the auditor will challenge that they have no right to do.

For example, according to the ACLU: “In Iowa, the law says that a person does not have to give their name if a police officer stops them (except for drivers in traffic stops, who must show their driver’s license).”

These auditors then will take the encounters’ video and publicize it on their digital channels – including YouTube, TikTok, and perhaps a website.

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How should public officials react to them?

The short answer is by following the law. If the auditors – or anyone else form the public – have a right to be there, and that’s obvious, why even “investigate?” That’s also a go-to for some auditors.

Officer: “I’m investigating a complaint.”

Auditor: “About what?”

Officer: “You filming and being suspicious.”

Sometimes the auditor will advise the officer to consider calling a supervisor, who usually says, “it’s a public sidewalk.” Other times, things can get more heated, and officers cite the person or arrest them.

The State of Michigan has advised state employees to “remain calm and pleasant” and “respectfully disengage.”

Some public officials ask questions once they are told the auditor is an independent journalist:

“Let me see the credentials.”

No official body credentials journalists, and I hardly ever carried a press badge when I was a print journalist. On a stringer assignment with the Associated Press in more recent years, they sent me a PDF of a graphic that says “AP Stringer.” I could have easily created that in Canva myself.

“Oh, what story are you working on?” is another question officials sometimes ask.

When the auditor tells them they can’t release that information; they challenge that journalists release that all the time. Journalists may do that, but there’s been plenty of times when I didn’t.

The Vermont League of Cities & Towns has a list of tips on responding.

Sometimes, auditors may use wording or a tone designed to trigger people, and while I disagree with that approach, it certainly also isn’t a reason to violate their rights to be in a public place.

Perhaps most extreme, in Iowa, the Iowa Public Information Board in 2023 was trying to get a law on the books that would allow government entities to ignore people if – in their opinion – the requester is “vexatious.” In case you don’t know the definition of “vexatious,” because why would you, here it is: “It’s causing or tending to cause annoyance, frustration, or worry.” In other words, if an auditor (or anyone) annoys a public employee by exercising their rights to public records, they can be ignored.

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What should private companies do when they encounter a First Amendment auditor?

Private companies do not have a First Amendment obligation to the people as far as I can tell, but there might be a public relations issue. For example, that can look like this:

  • Auditor films on a public sidewalk outside a company building
  • Company employees challenge the auditor for filming, being suspicious, etc.
  • They call the police
  • Police arrive and consider their response

Now, this is a roundabout way of auditing public agency responses. If the company doesn’t call the police, it’s done from a protected activity perspective without the police.

But it can be a PR issue for the company when employees come out and jaw at the person on a public sidewalk and maybe even get close to intimidating them.

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Do First Amendment auditors make money?

Some have “donate now” buttons on their websites or streams. They may also make money off ad revenue. Some say they will file a civil lawsuit against agencies for violating rights.

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What is the point of a First Amendment audit?

News media have done First Amendment audits for years – usually called Freedom of Information audits. So, testing public officials and their adherence to the law isn’t new. With the emergence of social media, any creator can decide to become a First Amendment auditor. In theory.

Conceptually speaking, two reasons come to mind of what the point of doing an audit is:

  • True public interest: Are public officials following the laws they swore to uphold (in case of law enforcement).
  • Making money: Some of these creators have huge followings and, like any creator, can monetize that reach.

Should you become a First Amendment auditor?

Some creators might consider entering the roam to do these videos themselves. Is that a good idea? It depends on your goals, and also consider if you can build an audience fast enough to make it lucrative.

Remember that building an audience can take time. So does monetization. You may have to travel to different cities. Plus, these situations can be stressful. So these are all things to consider if you are considering it.

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