First Amendment audit

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A thumbnail picture of a First Amendment audit video on YouTube Screen opening of First Amendment Audit by James Madison Audits.png
A thumbnail picture of a First Amendment audit video on YouTube

First Amendment audits are a largely American social movement that involves photographing or filming from a public space. It is often categorized by its practitioners, known as auditors, as activism and citizen journalism that tests constitutional rights, in particular the right to photograph and video record in a public space, a right normally covered by the First Amendment. [1] [2] Auditors have tended to film or photograph government buildings, equipment, and access control points, as well as any personnel present. [3]

Contents

Auditors believe that the movement promotes transparency and open government. Critics have argued that audits are typically confrontational, criticizing some tactics as forms of intimidation and harassment. Many opponents of the tactics and legal theories of auditors refer to auditors as "frauditors". [4]

The practice is predominantly an American concept, since the First Amendment is a part of United States law, but it has also been seen in other countries, including Australia, the United Kingdom, [5] [6] Canada, and Russia. [7]

Procedure

Self-styled Auditors typically travel to places considered public property, such as sidewalks or public right-of-ways, or places open to the public, such as post offices, police stations, public libraries [8] or other government buildings, and visibly and openly photograph and record buildings and persons in their view. [9] [10]

In the case of sidewalk or easement audits, the conflict arises when a property owner or manager states, in substance, that photography of their property is not allowed. Auditors have constitutional rights to record from open public spaces, as there is no reasonable expectation of privacy while in public spaces. The laws regarding public forums come into play in these situations, and are often the flashpoint of contention. Sometimes, auditors will tell property owners upon questioning that they are photographing or recording for a story, they are photographing or recording for their "personal use", or sometimes auditors do not answer questions. [11] [12]

Frequently, local law enforcement is called and the auditor is sometimes reported as a suspicious person and are often also identified as having been on private property. Some officers will approach the auditors and request their identification and an explanation of their conduct. Auditors refusing to identify sometimes results in officers arresting auditors for obstruction of justice, disorderly conduct, or other crimes. [13] [14]

An auditor selects a public facility and then films the entire encounter with staff and customers alike. If no confrontation or attempt to stop the filming occurs, then the facility "passes" the audit. [15] If an employee attempts to stop a filming event, it "fails" the audit. [16]

Purpose

Auditors describe their work as a form of grassroots accountability and constitutional testing. Their stated aim is to examine how government officials and law enforcement officers respond when citizens exercise rights that are legally protected but often socially contested, such as openly filming in public spaces. By creating encounters in ordinary settings—post offices, libraries, police stations—auditors seek to demonstrate whether public servants will respect constitutional limits in practice, not just in theory. In a 2019 Fox News article, one auditor stated that the goal of an audit is to "put yourself in places where you know chances are the cops are going to be called. Are they going to uphold the constitution, uphold the law ... or break the law?" [17]

Supporters view these audits as a continuation of the civil liberties tradition of “test cases” and public protest, in which individuals intentionally engage in protected but uncomfortable conduct to expose potential overreach of authority. By documenting these interactions and publishing them online, auditors argue they create an unfiltered check on government conduct and promote transparency where formal accountability mechanisms are perceived as weak or inaccessible. [18] [19]

Critics contend that some audits are motivated less by civil liberties concerns than by online notoriety or advertising revenue, which can encourage confrontational tactics designed to elicit dramatic responses. This has led to debate over whether the practice functions primarily as constitutional activism, performance for profit, or a mixture of both. [3]

Reactions

Government response

Auditors have been detained, arrested, assaulted, had camera equipment confiscated, weapons aimed at them, their homes raided by a SWAT team, and have been shot while video recording in a public place. [20] [21] [22] [23] [24] [25] Such events have prompted police officials to release information on the proper methods of handling such an activity. [26] [27] For example, a document sponsored by the International Association of Chiefs of Police (IACP) states that the use of a recording device alone is not grounds for arrest, unless other laws are violated. [28]

Support

Auditors believe that the movement promotes transparency and open government. [29] They argue that auditing raises awareness of police misconduct and pressures government agencies to train their employees to respect First Amendment rights. [10]

Criticism

Auditing has been controversial due to the tactics auditors have used in attempting to elicit potential reactions from police officers and private citizens alike. Many of these tactics have been criticized as they include the use of intimidation, harassment and even criminal instigation.

Critics argue that audits are often confrontational in nature, as auditors often refuse to self-identify or explain their activities. [30] [31] Some auditors yell insults, derogatory language, and vulgarities at police officers who attempt to stop them from recording and insist on identification. [3]

Some auditors have also been known to enter public buildings asserting that they have a legal right to openly carry firearms (a right covered by the Second Amendment, not the First), leading to accusations that auditors are engaged in intimidation, harassment and domestic terrorism. [32] [33] While not all are members of the sovereign citizen movement, a number are either members or express certain philosophies shared by these anarchic oriented groups. [34] [35] [36]

Critics have also noted that many auditors profit from the videos they publish on YouTube and other platforms. According to a report by The Daily Beast , the growing popularity of auditing videos online has led to "ruthless competition" between auditors, which incentivizes more dramatic, confrontational and abusive videos. [3]

The rights cited typically in audits are freedom of speech and freedom of the press in the First Amendment, freedom from unreasonable searches and seizures in the Fourth Amendment, and the right to remain silent in the Fifth Amendment of the United States Constitution.

Public recording

The legality of recording police in public was first clearly established in a United States jurisdiction following the case of Glik v. Cunniffe in the First Circuit, [37] which confirmed that restricting a person's right to film in public would violate their First and Fourth amendment rights. Though the Supreme Court has yet to affirm a right to record government employees, it has stated that there is a "paramount public interest in a free flow of information to the people concerning public officials." [38]

As the 7th Circuit Federal Court of Appeals explained in ACLU v. Alvarez, "[t]he act of making an audio or audiovisual recording is necessarily included within the First Amendment's guarantee of speech and press rights as a corollary of the right to disseminate the resulting recording. The right to publish or broadcast an audio or audiovisual recording would be insecure, or largely ineffective, if the antecedent act of making the recording is wholly unprotected." [39] [40]

Bystanders may object to being filmed in public, but courts have generally held that when people are in public spaces they do not have a reasonable expectation that they will not be recorded on video. There are, however, some limitations to this such as mental health, correctional and juvenile probation facilities.

Most federal appellate decisions addressing First Amendment audits arise in the context of civil rights lawsuits under 42 U.S.C. § 1983. In these cases, individual officers often raise qualified immunity as a defense, which shields government officials from liability for damages unless the constitutional right at issue was “clearly established” at the time of the incident. [41] As a result, the central question in much of the case law is not whether the First Amendment protects recording public officials, but whether that protection was sufficiently clear in a given jurisdiction and time period to overcome qualified immunity.

The First Circuit was the first to address the issue in Glik v. Cunniffe (2011), holding that a private citizen had a clearly established right to record police officers in a public park. The court reasoned that “[t]he filming of government officials engaged in their duties in a public place … fits comfortably within [First Amendment] principles.” [42] In ACLU v. Alvarez (2012), the Seventh Circuit similarly held that making audiovisual recordings of public officials is expressive conduct protected by the First Amendment, rejecting the argument that only publication is protected. [43]

Other circuits recognized the right but granted qualified immunity to individual officers on the ground that the law was not yet clearly established at the time of the events. In Turner v. Driver (2017), a case brought by a self-described First Amendment auditor who was detained while filming outside a police station, the Fifth Circuit held that recording police is protected under the First Amendment but ruled that the officers involved were immune because the right was not clearly established in the Fifth Circuit until that decision. [44] In Fields v. City of Philadelphia (2017), which involved citizens recording police officers during public events, the Third Circuit recognized the right to record but granted qualified immunity to the officers because the law had not been clearly established at the time. [45]

By contrast, later cases have denied qualified immunity where prior circuit precedent had already established the right. In Irizarry v. Yehia (2022), another case brought by a First Amendment auditor, the Tenth Circuit held that “there is a First Amendment right to film the police performing their duties in public,” and concluded that the right was clearly established by 2019, making qualified immunity unavailable. [46]

As of 2025, at least seven federal appellate courts—the First, Third, Fifth, Seventh, Ninth, Tenth, and Eleventh Circuits—have recognized a First Amendment right to record public officials performing their duties in public. [47] [48] [49] [50] [51] [52] [53] These decisions collectively cover more than thirty states.

Other circuits have declined to recognize the right as clearly established, often resolving cases on the basis of qualified immunity. The Eighth Circuit, in Molina v. Book (2022), held that two legal observers who recorded police activity during a protest engaged in protected activity, but concluded that officers were entitled to qualified immunity because the right to record was not clearly established in the Eighth Circuit in 2015. [54]

The Fourth Circuit has also not definitively ruled on the issue. In Sharpe v. Winterville Police Department (2023), the court held that livestreaming a traffic stop is expressive conduct under the First Amendment, but it remanded the case on qualified immunity grounds without deciding whether the right to record was clearly established within the circuit. [55]

Because most of these cases arise in damages suits under 42 U.S.C. § 1983, the scope of civil liability often depends less on whether a constitutional right exists in the abstract than on whether that right was “clearly established” in the jurisdiction at the time of the recording. [56] [57] Courts have also emphasized that the right is subject to traditional time, place, and manner restrictions, [58] and does not immunize otherwise unlawful conduct such as trespass, obstruction, or harassment. [59]

The United States v. Christopher J. Cordova

In the 2022 case of United States vs. Cordova first amendment auditor Christopher J. Cordova, operating under the YouTube channel name "Denver Metro Audits", was convicted on two counts in the Denver Division of the Federal District Court of Colorado. The case was heard by the Honorable Chief Magistrate Judge Michael E. Hegarty, Chief Magistrate Judge of the Federal District of Colorado. [60] [61]

Specifically, Mr. Cordova was convicted of "failure to comply with official signs and lawful directions (in violation of Case No. 1:22-po-07015-MEH Document 23 filed 07/07/23 USDC Colorado pg 1 of 11 2 41 C.F.R. § 102.74-385) and unlawful photography (in violation of 41 C.F.R. § 102.74-420)." [62] He was sentenced to 15 days in the custody of the Federal Bureau of Prisons, 2 years probation, and a $3,000.00 fine. [63] He was also required to obtain and maintain full time employment and refrain from any recording.

Mr. Cordova appealed the verdict and sentence, and the appeal was heard on June 6, 2024. [64] The appeals court issued its decision in October 2024, and denied all aspects of the appeal, remanding the case back to the trial court for imposition of sentence. The denial of the appeal also established firm case law that prohibits the use of any recording devices on federal property without the permission of the controlling agency of that property, which correlates with the legal principle of property of another, [65] which establishes that even if a person is a taxpayer and those paid taxes help pay for government property or other resources, that does not give any individual taxpayer any authority of entry, occupancy or administration over that property; that authority resides with the controlling government agency. In the Cordova case that agency is the Social Security Administration, which had sole authority to establish the time, place and manner of the conditions of use. [66]

Mr. Cordova reported for incarceration on October 22, 2024 to serve his 15 days in federal custody, which was served in the Denver County Jail in Denver, Colorado. [67] [60] [61]

Time, place and manner restrictions

Numerous court cases, most notably the case of Glik v. Cunniffe, [68] have also ruled that filming protections are subject to time, place, and manner restrictions, including in the majority of public buildings. Limitations include, but are not limited to, trespassing on public or private property, entering an established crime scene (whether marked or unmarked by crime scene tape or other methods), or materially interfering with police activities. [59] [69] The United States Supreme Court case of Grayned v. City of Rockford (1972) clarifies and defines the parameters of time, place, and manner restrictions [70] and is often cited when removing First Amendment auditors who are in violation of its guidelines. Conversely, it is also cited when protecting First Amendment auditors who are acting within its parameters.

Insults

While insulting the police is usually treated as constitutionally protected speech, in some jurisdictions it can be considered disorderly conduct, and if it interferes with a police interaction can also lead to charges of obstructing police or interfering with police in the performance of their duties. [71] [72] According to a guide published by the IACP, "verbal criticism and derisive comments made by recording parties or others from a location that has no direct impact on police operations or safety are not actionable by themselves." [69]

An auditor in San Antonio was prosecuted and convicted of disorderly conduct after an audit where he "chased, jostled and shouted insults at three officers on duty". [73] After the trial, the Chief of Police for the City of San Antonio stated "[the verdict] puts a dagger in the heart of their First Amendment excuse and verbally attacking police officers". [74]

See also

References

  1. ↑ "First Amendment Audits and How to Respond • California Association of Labor Relations Officers". California Association of Labor Relations Officers. 2017-08-24. Archived from the original on 2019-01-24. Retrieved 2019-02-19.
  2. ↑ ""First Amendment Audits" Coming to Your Town?". CIRSA. 2018-06-18. Retrieved 2019-02-19.
  3. 1 2 3 4 Sommer, Will (2019-01-24). "The Insane New Path to YouTube Fame: Taunt Cops and Film It" . Retrieved 2019-03-11.
  4. ↑ Rubin, Sara (2023-05-18). "A group who claims to care about free speech harasses the Weekly". Monterey County Weekly. Retrieved 2023-12-10.
  5. ↑ Sherwood, Trevor (2021-02-17). "Filming in Public: How should the police respond to UK Auditors? — Police Hour". Archived from the original on 2021-11-17. Retrieved 2021-11-17.
  6. ↑ Brinkworth, Alison (2021-08-16). "YouTuber gets police payout after stop and search for filming police station". Birmingham Live . Retrieved 2021-11-17.
  7. ↑ "Блогер MrRissso снял провокационное видео с рязанскими гаишниками". YA62.RU. October 14, 2019. Archived from the original on August 15, 2020.
  8. ↑ "Uptick in First Amendment Audits". American Libraries Magazine. 2022-01-03. Retrieved 2023-01-08.
  9. ↑ "Earl David Worden: Another Case of Videographers vs. the Police". Mimesis Law. 2017-02-21. Retrieved 2019-02-19.
  10. 1 2 "Cop-watchers are now YouTube celebrities. They've changed how police work". Washington Post. 2023-08-07. Retrieved 2023-12-10.
  11. ↑ WILLIAMS, SCOTT E. (13 February 2016). "GPD sergeant indicted in videographer's arrest". The Daily News. Retrieved 2019-02-19.
  12. ↑ "It didn't have to be this way - The Wetumpka Herald". The Wetumpka Herald. 2016-06-12. Retrieved 2019-02-19.
  13. ↑ WILLIAMS, SCOTT E. (13 February 2016). "GPD sergeant indicted in videographer's arrest". The Daily News. Retrieved 2019-02-19.
  14. ↑ "It didn't have to be this way - The Wetumpka Herald". The Wetumpka Herald. 2016-06-12. Retrieved 2019-02-19.
  15. ↑ Peterson, Stephen (20 October 2019). "Online group gives Foxboro Police Dept. high marks on preserving First Amendment rights". The Sun Chronicle. Retrieved 2019-11-14.
  16. ↑ "Candid Cameras: How to Respond to a First Amendment Audit". Wisconsin Department of Public Instruction. 2019-01-09. Archived from the original on 2019-07-09. Retrieved 2019-02-19.
  17. ↑ Mikelionis, Lukas (2019-02-16). "Online activists' 'First Amendment audits' -- patriotism or provocation?". Fox News. Retrieved 2019-02-19.
  18. ↑ "Blind Justice escorted out of meeting by police in latest free speech test". 2019-02-05.
  19. ↑ "Lawmaker Who Pushed Bill to Protect People Filming Police Arrested for Filming Police". The Intercept. 2016-09-30.
  20. ↑ ""First Amendment auditor" claims sheriff deputy attacked him at Lebanon County courthouse - witf.org". witf.org. 2018-04-10. Archived from the original on 2018-09-13. Retrieved 2018-09-12.
  21. ↑ "Viral video of Ohio police causes outrage, crashes phone line". WKBN. 14 March 2018.
  22. ↑ Heinz, Frank (6 February 2018). "Man Recording Police Files Complaint After Officer Draws Gun". NBC 5 Dallas-Fort Worth.
  23. ↑ Panzar, Javier; Reyes-Velarde, Alejandra; Queally, James (15 February 2019). "YouTube personality 'Furry Potato' shot and wounded outside L.A. synagogue". Los Angeles Times . Retrieved 2019-02-17.
  24. ↑ "How a team of YouTubers went to war with a Texas police chief". The Daily Dot. 2018-12-31. Retrieved 2019-02-16.
  25. ↑ Roberts, Michael (2019-02-05). "See Boulder Jail Cops Bust Men for Taking Video on Public Sidewalk". Westword. Retrieved 2019-02-21.
  26. ↑ "First Amendment Audits and How to Respond • California Association of Labor Relations Officers". 24 August 2017. Archived from the original on 2020-02-06.
  27. ↑ "You're on camera: How police should respond to a 'First Amendment audit'". PoliceOne. 2 May 2018.
  28. ↑ "PROP Instructor's Guide" (PDF). theiacp.org. Retrieved 2019-02-16.
  29. ↑ "First Amendment videotaped audit of police leads to investigation". WS Chronicle. 2015-03-26. Archived from the original on 2019-01-16. Retrieved 2019-02-19.
  30. ↑ "Courting arrest for online clicks and the First Amendment - ExpressNews.com". expressnews.com. 2018-07-10. Retrieved 2019-01-22.
  31. ↑ "What is 'auditing,' and why did a YouTuber get shot for doing it?". Washington Post. Retrieved 2019-02-16.
  32. ↑ https://taskandpurpose.com/news/2-men-entered-police-station-rifle-audit-response/ Archived 2023-03-30 at the Wayback Machine Story about second amendment auditors who behaved the same essential way.
  33. ↑ https://www.freep.com/story/news/local/michigan/2021/11/09/michigan-first-amendment-auditors-video-public-buildings/6350167001/ Fifth paragraph of story.
  34. ↑ "They roam public buildings, making videos. Terrorism experts say they may be dangerous". kansascity. Retrieved 2019-01-22.
  35. ↑ Cushing, Tim (August 5, 2014). "Documents Show 100 Officers From 28 Law Enforcement Agencies Accessed A Photographer's Records". Techdirt. Retrieved 2019-03-19.
  36. ↑ "Alabama Cop Snatches Camera from Man Recording Police Station". Photography is Not a Crime. Retrieved 2019-03-19.
  37. ↑ "Glik v. Cunniffe". ACLU Massachusetts. 2015-06-21. Retrieved 2020-04-19.
  38. ↑ Nickodem, Kristi; Wilson, Kristina (November 9, 2022). "Responding to First Amendment "Audits" in the Local Government Context" (PDF). Local Government Law Bulletin (141): 4.
  39. ↑ "American Civil Liberties Union of Illinois v. Anita Alvarez" (PDF). United States Court of Appeals. 8 May 2012.
  40. ↑ "ACLU v. Alvarez". ACLU of Illinois. 2011-01-05. Retrieved 2019-02-19.
  41. ↑ "Harlow v. Fitzgerald, 457 U.S. 800 (1982)". Justia U.S. Supreme Court. Retrieved 2025-09-05.
  42. ↑ "Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011)". Casetext. Retrieved 2025-09-05.
  43. ↑ "ACLU v. Alvarez, 679 F.3d 583 (7th Cir. 2012)". Casetext. Retrieved 2025-09-05.
  44. ↑ "Turner v. Driver, 848 F.3d 678 (5th Cir. 2017)". Casetext. Retrieved 2025-09-05.
  45. ↑ "Fields v. City of Philadelphia, 862 F.3d 353 (3d Cir. 2017)". Casetext. Retrieved 2025-09-05.
  46. ↑ "Irizarry v. Yehia, 38 F.4th 1282 (10th Cir. 2022)". Casetext. Retrieved 2025-09-05.
  47. ↑ "Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011)". Casetext. Retrieved 2025-09-05.
  48. ↑ "Fields v. City of Philadelphia, 862 F.3d 353 (3d Cir. 2017)". Casetext. Retrieved 2025-09-05.
  49. ↑ "Turner v. Driver, 848 F.3d 678 (5th Cir. 2017)". Casetext. Retrieved 2025-09-05.
  50. ↑ "ACLU v. Alvarez, 679 F.3d 583 (7th Cir. 2012)". Casetext. Retrieved 2025-09-05.
  51. ↑ "Fordyce v. City of Seattle, 55 F.3d 436 (9th Cir. 1995)". Casetext. Retrieved 2025-09-05.
  52. ↑ "Irizarry v. Yehia, 38 F.4th 1282 (10th Cir. 2022)". Casetext. Retrieved 2025-09-05.
  53. ↑ "Smith v. City of Cumming, 212 F.3d 1332 (11th Cir. 2000)". Casetext. Retrieved 2025-09-05.
  54. ↑ "Molina v. Book, 49 F.4th 1082 (8th Cir. 2022)". Casetext. Retrieved 2025-09-05.
  55. ↑ "Sharpe v. Winterville Police Department, 59 F.4th 674 (4th Cir. 2023)". Casetext. Retrieved 2025-09-05.
  56. ↑ "Harlow v. Fitzgerald, 457 U.S. 800 (1982)". Justia U.S. Supreme Court. Retrieved 2025-09-05.
  57. ↑ Sibilla, Nick. "First Amendment Protects the Right to Film Cops, Federal Court Reaffirms". Forbes. Retrieved 2025-09-05.
  58. ↑ "Grayned v. City of Rockford, 408 U.S. 104 (1972)". Justia U.S. Supreme Court. Retrieved 2025-09-05.
  59. 1 2 Nickodem, Kristi (2022-11-09). "Responding to First Amendment Audits in the Local Government Context". Coates’ Canons NC Local Government Law. Retrieved 2023-12-10.
  60. 1 2 Secondary source https://www.govinfo.gov/app/details/USCOURTS-cod-1_23-cr-00453/USCOURTS-cod-1_23-cr-00453-0 Government Information Website
  61. 1 2 US District Court - Northern District of Colorado Filings. Pleadings and Status Reports https://www.cod.uscourts.gov/Documents/Judges/Calendars/2023-02-20/meh.pdf
  62. ↑ https://storage.courtlistener.com/recap/gov.uscourts.cod.219724/gov.uscourts.cod.219724.23.0.pdf [ bare URL PDF ]
  63. ↑ https://www.courtlistener.com/docket/66664962/united-states-v-cordova/ Part 31
  64. ↑ "United States v. Cordova, 1:23-cr-00453 - CourtListener.com". CourtListener. Retrieved 2024-10-15.
  65. ↑ "Justice Manual | 1630. Protection Of Government Property -- Real Property -- 18 U.S.C. 7 | United States Department of Justice". www.justice.gov. February 19, 2015.
  66. ↑ Title 41 Code of Federal Regulations https://www.ecfr.gov/current/title-41/subtitle-C/chapter-102/subchapter-C/part-102-74/subpart-C
  67. ↑ "United States v. Cordova, 1:22-po-07015 - CourtListener.com". CourtListener.
  68. ↑ Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011)
  69. 1 2 "Public Recording of Police Activities; Instructor's Guide" (PDF). International Association of Chiefs of Police. Retrieved 2019-02-16.
  70. ↑ "Richard GRAYNED, Appellant, v. CITY OF ROCKFORD".
  71. ↑ Denvir, Daniel (24 July 2015). "Everyone Has the Right to Mouth Off to Cops". Bloomberg. Retrieved 2019-03-11.
  72. ↑ "Court: First Amendment protects profanity against police". The Seattle Times. 2015-06-25. Retrieved 2019-03-11.
  73. ↑ "City of San Antonio Successfully Prosecutes Individual for Disrupting Police Officers during Course of Duty". The City of San Antonio - Official City Website. Retrieved 2019-03-11. "[R]epeated verbal attacks against us simply for wearing a uniform and performing our duties does not represent the spirit of the law," San Antonio Police Chief William McManus
  74. ↑ Ramirez, Quixem (2019-03-06). "McManus: YouTubers confronting officers use first amendment as 'guise' to attack police". KTXS. Retrieved 2019-03-11.Caltabiano, David (2019-03-10). "Local YouTuber speaks out after conviction". WOAI. Retrieved 2019-03-11.
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