They can’t film me! – What to know about public photography and videography

Man photographing woman on the streetPhoto byDeposit Photos

A phenomenon is spreading across the nation over social media. People are taking to the streets and conducting photography and videography in public. The movement has been known by several different names through the years but currently is called First Amendment Auditing.

First Amendment Auditing, in various forms, has been around since before the American Revolution. It is rooted in the people’s right to gather information of public interest and then disseminate that information to others. King George II of England put tight restrictions on what information was allowed to be disseminated, which is why the freedom of the press is included as one of the five tenets of the First Amendment to the United States Constitution.

The movement in the current time has taken from pads and pencils and moved to cameras. This version of the activity gained notoriety on March 3, 1991. On that day, George Holliday had decided to test out a new video camera that he had just purchased. Unbeknownst to Holliday, the video that he would capture the beating of a man just shy of his 26^th birthday, Rodney King, by officers of the Los Angeles Police Department.

Having his offer to produce the video to police officials declined, Holliday took to the media, who then distributed the video worldwide to show what happened.

From that date forward, people began carrying their cameras with them in the event that something happened that could be videoed and then distributed. In those days, personal video cameras were new to society, and people would jump in front of someone taking video saying, “Hi, Mom!” and hoping to find themselves on the news.

Women waving to a cameraPhoto byDeposit Photos

As the events that spurred this had involved a police beating during a traffic stop, groups then began following police officers and taking video of the traffic stops that ensued. Calling themselves “Cop Blockers,” the group sought to block police officers from violating citizen rights as had been done to Rodney King.

Since some of the groups would engage in what many would call inappropriate attempts to coax video-worthy content from the police officers, the movement began referring to themselves as “Cop Watchers” and attempted to tone down rhetoric that would be seen as disrespectful to the officers. Instead of trying to “block” officers from violating rights, the Cop Watchers would merely observe and video the traffic stops, reporting suspected violations to the police departments.

Police lights at a DUI checkpointPhoto byDeposit Photos

As time moved on, others joined the movement and expanded into other governmental operations. Almost any government facility came under the lens of the videographers. From military installations to post offices, to city halls and county courthouses, virtually any manner of facility was subject to this activity.

They turned their focus from trying to find corruption or misconduct to judging how public employees responded to the taking of videos in and of government buildings and activities. Because they were gathering information on how government employees handled themselves in the course of their duties, some began calling themselves “Citizen Journalists.”

This new term brought with it controversy as the public had become accustomed to only the “mainstream media” networks being considered as “press.” Tying in the other tenets of the First Amendment – religion, speech, assembly, and petition for redress – the argument in their favor was that the freedom of the press, just as the others in the First Amendment, applied to everyone and not just a certain, recognized few.

First Amendment to the United States ConstitutionPhoto byPace University - Elisabeth Haub School of Law

Further, these Citizen Journalists were supported by decisions made in the United States Supreme Court (SCOTUS) granting the rights of the press to those same areas that could be visited by the general public. SCOTUS has also loosely defined the act of journalism to include any method of gathering information of public interest for dissemination.

Using these rulings and correlations to support their activities, the movement turned to the moniker “First Amendment Auditing.” The premise behind the name is that the auditors, as they call themselves, use their videos to “check-up” on government employees and make sure that federal laws and the constitutional standards regarding freedom of the press are upheld. For a short period, the name “Employee Conduct Checks” was used to describe the audits.

Auditors are often confronted with the claim that one cannot take photos or video in a government building. This claim, though, is in direct contrast to the purpose of the First Amendment and the SCOTUS rulings. The purpose of the freedom of the press inclusion in the First Amendment is to do exactly what the auditors have set out to do: to ensure that the people can monitor government and government employees.

Similarly, some people, even in such public offices, will tell auditors that they do not have the right to photograph or video them without authorization. This, too, is in contrast to SCOTUS decisions that have declared essentially that there is no right to privacy in public. Government employees particularly are unable to successfully make this claim as, while in the performance of their duties, they are representative of the office they hold. As such, to claim that they need authorization means that the auditor would need government permission to investigate its activities.

A growing trend has been emerging, though, where auditors are including any public area as part of their subject. Particularly in towns and small cities that have a downtown area lined with shops, or with shopping districts laid out similarly, they will walk the streets, being mindful of remaining on public sidewalks, to take video of the shops and shoppers.

Crowded shopping areaPhoto byDeposit Photos

During these ventures, the auditors receive the same arguments about privacy as above. Additionally, shopkeepers will claim that the auditors are unable to take photos or video of the interior of their businesses without authorization. By remaining on a public sidewalk, though, the auditors are fully within their rights to take photos and video. The phrase “the eyes cannot be trespassed” comes from another SCOTUS ruling indicating that whatever can be seen from public, such as a sidewalk, can also be photographed and videoed without further authorization.

Generally, a person taking photographs for video from a public location is fully within their rights, even if getting private individuals in the photos or video footage. Additional authorization from those appearing in the photos and video would be required if the photos or video footage were to be used for commercial or advertising purposes. Unless the photos or video footage is to be used for something like a television program or movie, or for use to endorse and advertise a product, then no waiver or image release is required.

Some of the videos appear on social media platforms such as YouTube and TicToc which will allow for “monetization.” Monetization is the act of allowing the platform to interrupt the video with advertisements and earn income through that. This is no different from the mainstream media networks that also sell advertising time during their news programs. As with those media companies, the auditors are making money from the advertising and not from the publishing of the photos and videos.

So long as the auditor remains in an area accessible to the general public or on public property, then their actions in taking the photos or video footage are completely legal and do not require authorization. As is shown in many, many videos of First Amendment Audits, allowing the auditor to perform their activities without confrontation or interrogation will generally result in the images including given individuals likely will have those individuals not appearing in the published photos or video footage.

While it will make for a boring video, this is what many First Amendment Auditors claim they want: peaceful interactions, or no interaction at all, that respect their right to take photographs and video footage from public property and in publicly accessible areas.