“First Amendment Audits”: What Municipalities Need to Know and How to Be Prepared

In recent years, municipalities across New York—and the nation—have found themselves in the crosshairs of so-called “First Amendment auditors.” These self-styled activists visit government offices with cameras rolling, often without warning, claiming to test public officials’ respect for constitutional rights. In practice, their tactics often include baiting staff, provoking confrontations, and posting selectively edited videos online, sometimes leading to a deluge of hateful calls, emails, and even threats.

These incidents are disruptive and stressful for staff, but they can also escalate into viral PR crises. Worse, if not handled correctly, they may expose a municipality to legal liability or public scrutiny. That’s why preparation is essential.

What Is a “First Amendment Audit”?

A “First Amendment audit” typically involves an individual entering a public building, often without identifying themselves, and filming interactions with staff and visitors. While the stated goal is to uphold free speech rights, the reality is frequently more confrontational. The auditor may aggressively assert a right to film in areas that are not, in fact, open to public expression. The footage is then shared on platforms like YouTube, where it is edited for maximum impact. This can lead to serious reputational harm, as well as an influx of online harassment.

The Legal Landscape: What the Law Actually Says

The First Amendment does indeed protect the right to film government officials in public spaces, like sidewalks or parks. But not all government property is a public forum. Areas like the interior of municipal buildings—including clerk’s offices, hallways, or meeting rooms—may be classified as nonpublic forums. In such spaces, municipalities have the right to enforce reasonable restrictions on behavior, including recording, so long as the rules are content-neutral and uniformly applied. In other words, just because a building is owned by the government doesn’t mean there’s an unrestricted right to film inside it.

Best Practices for Municipalities

To protect both staff and constitutional rights, municipalities should take proactive steps:

1. Adopt an Official Recording Policy

Have your legislative body (city council, town board, or village board) adopt a formal policy on where and when recording is allowed. Without such a policy, enforcement becomes much riskier—and more prone to viral backlash.

2. Post Clear Signage

Clearly identify public and restricted areas, and explicitly note where recording is not permitted. Signage should be professional, visible, and in compliance with your adopted policy.

3. Train Your Staff

Staff should be calm, courteous, and informed. Panic or hostility is exactly what auditors are looking to provoke. Ensure staff know when to engage, when to disengage, and when to involve law enforcement.

4. Prepare Law Enforcement

Coordinate with your local police department to make sure they are familiar with your policy and know how to respond. Removal may be warranted in some cases—but arrest or confrontation should be a last resort, and only where legally justified.

5. Consult Legal Counsel

Every building, every policy, and every encounter is different. Experienced municipal counsel can help craft policies that are legally sound, defensible, and tailored to your facilities and operations.

Why Legal Counsel Matters

Handling a "First Amendment audit" is as much about legal compliance as it is about public relations. A knowledgeable municipal attorney will help ensure your policies are enforceable, your staff are protected, and your municipality avoids unnecessary liability or media fallout. Unfortunately, these confrontational encounters are becoming more common, not less. The best defense is preparation, education, and calm, consistent enforcement.

If your municipality has not yet reviewed its public access and recording policies, now is the time. These “audits” are not going away—and failing to prepare is preparing to go viral for all the wrong reasons.

If you have questions about so-called “First Amendment Audits,” how municipalities can prepare, or any other municipal law matter, please contact Jacob H. Zoghlin at 585-258-2834 or jzoghlin@underbergkessler.com or Mindy L. Zoghlin at 585-258-2871 or mzoghlin@underbergkessler.com at Underberg & Kessler LLP.