By Frank Chmelik, Tim Schermetzler and Allison Beard of CSD Attorneys at Law P.S.

The Public’s Right to Film & Responding to First Amendment “Auditors”

                This month’s column discusses what restrictions ports can put on persons attempting to access port property.  Simply because property is owned by a port does not make that property open to the public.  This point appears obvious when considering secure areas, such as the SIDA (Security Identification Display Area) or an airport or secure marine terminal spaces, where restricting access is a clear matter of public safety.   However, the line may get blurry when port staff attempt to restrict public access to places in a port which do not pose a clear security risk, but where limiting public access may still be necessary, such as port offices.  The question of restricting public access can arise when a person from the public wants to test the port’s compliance with laws concerning public access and open government.  These individuals often identify themselves as "First Amendment auditors" or "auditors." 

                Consider the following hypothetical and how would your port respond:

A person walks into a port administrative building with a camera on a tripod, wearing a mask, black clothing and a hat, and proceeds to film his interactions with the port staff.  The person does not identify himself and behaves in a manner which makes some staff feel uncomfortable, or even unsafe.  The person begins wandering the halls and entering offices and rooms and attempts to film computer screens of the staff.  Soon after the incident ends, the person posts the video recording edited in a fashion which makes the port staff look unaccommodating and rude, or suggesting that port staff violated that person’s constitutional rights, even if there is no basis for this accusation.

                The above-described incident is an example of a "First Amendment Audit" performed by an "auditor."  These "auditors" may also attempt to provoke a violation of their rights under the Second Amendment to the U.S. Constitution, by openly carrying a legal firearm in a public place which is allowed by chapter 9.41 RCW.[1]

                We understand that the “auditors” often intentionally push the boundaries of their First and Second Amendment rights to see whether the municipal agency responds in a way consistent with what the auditors believe their rights to be.  These auditors can become confrontational in an attempt to provoke a violation of their rights, which can then serve as basis for a legal claim against the local government.  A quick YouTube or TikTok search of the phrase “First Amendment Audit” will demonstrate the popularity of such occurrences.  While some auditors may truly intend to educate employees on the public’s constitutional rights, others are more interested in baiting public agencies into a violation of their constitutional rights.

                Ports should be prepared for how to legally respond to such audits as they are becoming more and more commonplace.  Below are some key steps in how to prepare your Port to respond to an audit:

• Ports should consider adopting policies that close off certain areas of its administrative buildings from the public, for example, port offices except the public waiting room and the commission chamber.  In addition to the adoption of the policies, ports should post clear signage on which areas are for authorized staff/persons only.  If an auditor attempts to access a restricted area of the port, the port can trespass them and contact law enforcement if necessary to remove that person.

• Ports should consider adopting in their policies reasonable, neutral, time-place-and-manner restrictions on the public’s access and use of its public spaces, including for example, the public areas of a port’s administrative buildings.  These policies should clearly establish the extent port properties are open to the public, and which areas are for port staff or approved persons only. 

• Think about architectural or procedural additions to make this clear – for example a door with an electronic lock to enter Port administrative offices, a sign in sheet for visitors, a port person meeting the official visitor in the public area and escorting them into the office or even a badge system.  This same procedure should be applied to maintenance facilities or fire stations or other areas not open to the public.

• Educate port staff, especially front-line staff interacting with the public, on the rights members of the public have to film (video and audio) in the public areas of port administrative buildings  where there is no reasonable expectation of privacy, and film from vantage points otherwise open to the public.  Washington law allows filming without consent in a public place.  For example, an auditor could film their conversation with port staff persons in the Port’s office lobby because there is no reasonable expectation of privacy for a conversation between a government official and a member of the public in places that are open to the public.[2]  Educate port staff to not ask an auditor to leave the public area of an administrative building unless the auditor’s behavior rises to the level of violation of a law or is so disruptive as to make the continuation of port’s business unfeasible.  The following behaviors alone have been found by courts to be insufficient to warrant agency removal of an individual: filming in a public agency’s building; using profane language; wearing a politically charged graphic shirt; silent display of a “Nazi salute.”  If the auditor’s behavior does not violate a law or rise to the level of disruptiveness explained above, the port staff should ignore the auditor (except for providing him/her government services) to the extent possible.

• Provide education of what port staff should do if they are uncomfortable.  For example, should they call their supervisor?

• If the auditor’s behavior does violate a law, such as trespassing, or rise to the level of disruptiveness, the staff should not ask the individual to stop filming, but can identify for the individual which behavior is disruptive and to politely ask the individual to stop.  If the individual does not stop the disruptive behavior the port staff should proceed to call law enforcement to have the individual removed from the building.

• If at any time the auditor poses a legitimate safety threat to port staff or other persons (such as making verbal or physical threats of violence, assault or battery) port staff should call law enforcement.

                In  summary, like many port issues, plan ahead and educate your staff before the First Amendment Auditors arrive at your port.

As always, please contact your port counsel with any questions regarding this topic.  And, if you have a particular question for a Knowing the Waters, please email us at fchmelik@csdlaw.com or tschermetzler@csdlaw.com.

[1] Local governments are preempted from adopting their own firearm regulations under Washington law.

[2] Note Washington State’s two-party consent law, RCW 9.73.030, with regards to recording does not apply to interactions where there is no reasonable expectation of privacy, such as a port employee working in their capacity as a public employee.