First and Second Amendment ‘Auditors’

After seeing a news report of a man with a firearm walking down SE 29th Street in Midwest City, Oklahoma, I stumbled upon a growing trend that had escaped my attention until now. The man with the weapon was a self-described Second Amendment ‘auditor’ and was openly carrying the weapon to test the police response. He had a camera filming as Midwest City police stopped to contact him and verify he was in compliance with state laws regarding open carry of firearms. He was and they left. This same man had also been walking through a park in Edmond, OK and filmed the response as a half-dozen police officers surrounded him with their weapons at the ready.

This man and many others around the nation have spent hundreds and hundreds of hours doing First and Second Amendment ‘audits’ in various cities. Their process for what they call a First Amendment audit is to go to a public building, such as a city hall, library or police department, pull out their cameras and begin filming. They film the lobbies, the employees, the visiting public and anything else they can see. Their stated purpose is to determine if the public officials (usually police) will hassle them and demand they stop filming or produce identification. They claim a ‘successful audit’ is one in which nobody bothers them, they complete their filming and leave.

However, as I watched numerous ‘audit’ videos on YouTube it became obvious that a large number of these agitators, um, auditors, seem to have the goal of creating a conflict that will provide entertainment to the viewers of their videos. I noticed that several of these agitators have thousands of subscribers to their YouTube channels. Lots of them have so many videos they’ve done that I don’t see how they’d have time to hold a job. One agitator in particular who operates mostly in Oklahoma appears to enjoy antagonizing employees who request to not be filmed. He will tell them they’re public employees, he has a right to film them and then make a point of aiming his camera directly at them. If any have the temerity to pull their phones out and start filming him in response, he threatens to file a Freedom of Information Act request to get the contents of their personal phones.

Even visitors from the public who might be at the building to conduct some sort of business are not immune from their filming. I watched a video of a man filming at an Oklahoma Department of Human Services building as he panned his camera over the lobby. One woman objected to him filming her and her minor daughter and the agitator’s response was, “Sometimes freedom isn’t comfortable. If you don’t like it, leave. Stop being ignorant. Worry about yourself, weirdo.”

That man was arrested in Tulsa recently after doing a Second Amendment audit in a city park. He was walking through the park while openly carrying a firearm, which is legal, but at least one person accused him of pointing the weapon at people, which is definitely not legal.

The filmed encounters with police are the videos that most of these people seem to be wanting. A few around the nation that I have watched were polite and courteous with the officers, who were not always polite and courteous in return. But there were a bunch of auditors who were anything but polite and courteous and seemed to delight in provoking the officers. The officers who realized they had no legal leg to stand on and eventually left were all labeled as doing ‘the walk of shame.’ Such an occurrence was quite obviously the high point for the people with the cameras.

Many of these videos showed the people being filmed asking the auditor why they were filming. The response I heard most often was that rights not exercised are rights that are lost. I have yet to find a court decision that says rights are lost if not used. That seems to be an excuse these people have for deliberately inciting public employees, just because they can.

I would be remiss if I left out the fact that in a large number of these videos, the response from officials, usually police, is flat-out wrong. Falling for the bait and demanding someone leave a public area because they are filming is not the proper response. Even more egregious is police officers demanding that the auditor provide identification, sometimes even under threat of arrest for not complying. Some auditors have actually been arrested. Being provoked is no justification for officers committing a blatant violation of rights.

While these ‘auditors’ may be well within their rights to do their filming in some locations, having the right to do something does not make it the appropriate or right thing to do. It was very obvious in some of the videos I watched that the public employees who were being filmed were extremely uncomfortable with it. Imagine sitting at your desk at your place of employment and in walks a guy or perhaps two who film everything they see, including you, may or may not be carrying firearms, refuse to tell you who they are or why they are filming and get short with you when you object to being filmed.

An exchange between one of these auditors and an Enid, Oklahoma city employee says a lot.

The Kansas City Star – Roth filmed his visit to City Hall in Enid, Okla., on Nov. 14.

“I’m just auditing my public servants,” he said as he meandered through the building. He walked into the City Code Administration office.

“Just touring the city of Enid….taking a little peek around,” he told a city code official.

She asked where he was from. He said Texas. She looked concerned. “I think what makes me a little bit uncomfortable is there’s just a lot of strange things that happen in the world out there right now,” she said.

“And I’m not a terrorist,” Roth replied. “There’s no terrorism going on, I promise.”

The city official was now visibly scared: “I don’t know that I feel particularly safe right now.”

“You don’t feel safe?” Roth said, still filming her. “Oh, here, I’ll get up. I’ll leave. Oh, come on now, Angela, it’s fine. Everything’s OK.”

She stood up and looked around nervously.

“Angela, relax. Just relax. I’m just showing you, I don’t have any weapons. I’m just letting you know. Everything’s fine, everything’s OK. I don’t have a bomb strapped to me or nothing; it’s just my GoPro.”

A man in her office called police. When an officer arrived, Roth refused to give his name.

“They called me because you’re a suspicious person inside the building here….you’re making them feel uneasy,” the officer said, asking Roth for his name.

“I just don’t feel safe giving it…how do I know you’re not going to plan an attack on my home?” Roth said.

The officer looked confused: “Excuse me? Why would I plan an attack on your home?”

“I don’t want to give my information,” Roth said. “It’s unsafe nowadays. Do you know everything going on in the world, with terrorism and everything?”

He doesn’t feel safe in giving his name but has no problem scaring public employees by filming them. I doubt he sees the irony in that.

The legal question of whether or not these auditors are within their rights to film in these public places is a bit of a gray area. In most of the videos I’ve watched, the answer is yes. Some auditors have commented that they have done research about the place they are ‘auditing.’

The Supreme Court has not yet heard a case directly involving photographer’s rights. But, other decisions by the Court have laid some guidelines that can be used. The case that would seem to apply the most is Perry Education Association v. Perry Local Educators’ Association (1983). The case involved access to the internal school mail system and teacher mailboxes of the Perry Township schools. The PLEA had been denied access to the mailboxes and sued, claiming the denial of access violated the First and Fourteenth Amendments. The Supreme Court ruled against PLEA and set what is known as the public-forum doctrine, establishing a three-level hierarchy of public forums.

The first level is the traditional public forum. “In places which by long tradition or by government fiat have been devoted to assembly and debate, the rights of the State to limit expressive activity are sharply circumscribed.” Streets, parks and sidewalks would be places of traditional public forum.

The second level is limited public forums. The Court defined this as “public property which the state has opened for use by the public as a place for expressive activity.” Reasonable time, place and manner policies are allowed and any limiting of speech based on content must be narrowly drawn to serve a compelling state interest.

The third level is the non-public forum. This is public property which is not traditionally a forum for public debate or communication. The Supreme Court has held that an airport terminal is a nonpublic forum. Thus, the government can ban solicitations inside the airport and ban video recording at TSA checkpoints. Post offices are non-public forums even though parts of the post office are open to the posting of public notices.

The Supreme Court has ruled that “with respect to activities on government property, the Constitution does not require the Government freely to grant access to all who wish to exercise their right to free speech on every type of Government property without regard to the nature of the property or to the disruption that might be caused by the speaker’s activities.”

Under these public forum guidelines, some of these auditors are clearly filming in places that they can be told to stop. Police department lobbies are not traditionally forums for public debate. Department of Human Services buildings are not forums for public debate. I did notice in a lot of videos that some auditors remain on the sidewalks outside various places at which they film. Sidewalks being in the first level of public forums should mean they can stand there and film whatever is in view all day long. Clearly, there are a lot of law enforcement folks out there who are either unaware of this or don’t care and choose to flex their authority.

What is it these First Amendment auditors are hoping to gain by continuing to create conflict with law enforcement? Whether they are staying in traditional public forums or straying into the nonpublic forums, I don’t see any valid purpose for doing these so-called audits except to get clicks on YouTube. Some say they are ‘educating’ people or law enforcement about their right to film. To what end? So you’ve managed to aggravate the police but you were able to make your point to them in the process. Good for you. Now I’ll feel completely safe taking my camera over to the public works building to film from the sidewalk.

The only thing on which I could possibly agree with these auditors is their Second Amendment activities. Under current Oklahoma law, it is legal for me as a concealed carry permit holder to walk around while openly carrying my Glock. If I chose to do that, there’s no doubt there would be people who would see my gun, freak out and call the police. While I can understand their fear, I would not agree that it requires a police response any more than someone walking down the street without carrying a firearm. I’m not doing anything illegal. In the initial video I mentioned, the Midwest City police verified that the man walking down 29th street had a permit, then they left. It is my belief even that is unwarranted. There’s no reason to stop someone who is walking while openly carrying just to verify he has a permit any more than there is to randomly pull over a driver just to verify they have a valid drivers license.

Does that mean these Second Amendment auditors are justified in doing these videos? Yes, I’d have to say they are, even though I believe one of their purposes for doing it is to create YouTube videos that get them attention and strokes their egos.

Until police departments decide to train their personnel that people who don’t seem to be breaking any laws don’t warrant a police response, I would agree these activities serve a purpose.

Here’s how a proper conversation should go at the police department:

Dispatcher: “911, what is your emergency?”

Caller: “There’s a man walking down the street with a gun.”

Dispatcher: “What is he doing with the gun?”

Caller: “It’s in a holster on his belt.”

Dispatcher: “Has he removed the gun from its holster? Has he pointed it at anyone?”

Caller: “No, he’s just walking down the street with a gun in a holster.”

Dispatcher: “That’s completely legal. We won’t be sending anyone.”

I’m not unsympathetic to those who fear seeing people in public with firearms. But, at the same time, people in public with firearms should be left alone unless they are known to be in violation of the law.

I’m sure these First and Second Amendment auditors see themselves are protectors of our rights. While I can partially agree with their Second Amendment activities, their cause is harmed by their ego-inflating First Amendment videos. There just doesn’t seem to be any legitimate, beneficial purpose to it all, other than to incite and aggravate public employees, just because they can.