First Amendment Auditors

On November 3, 2020, two men wearing tactical vests and armed with a handgun stood outside a ballot box and filmed voters dropping off ballots in front of the Arapahoe County administration building in Littleton, Colorado.  Alarmed county staff approached the men and asked them what they were doing while others called the police.  In response to the county staff’s questioning, the men identified themselves as “First Amendment auditors,” and upon further questioning by police officers, the men conveyed that they had the legal right to film people outside a government building, and further that they possessed the right to carry firearms under Colorado’s open carry law.  The men recorded their encounter with police and County staff.  Ultimately the police decided not to cite or otherwise detain the two individuals because they did not actively prevent any voters from delivering their ballots.[i]

Instances of the above, known colloquially as “First Amendment audits,” are an increasingly prevalent phenomena that involves members of the public who call themselves citizen journalists and/or First Amendment auditors and who typically attempt to provoke a response or otherwise test local government officials.  The practice refers to individuals who travel to publicly-accessible areas on public property, including within local or municipal offices, and then film their encounters with public employees.  The self-proclaimed goal of these auditors is to test whether the government is abiding by the strictures of the First Amendment by leaving them be; if an official detains, cites, harasses, or otherwise restricts or arrests the auditor, the local entity is deemed to have “failed” the audit.  These filmed encounters usually wind up on social media including YouTube and Facebook with the stated goal being to raise awareness about violations of the law and holding the government accountable, while concurrently encouraging members of the public to express their disdain for the public employees who have been filmed.

Because auditors often behave provocatively and seek confrontation not only with police but also try to engage with municipal employees at all levels, and because the ramifications of a “failed” audit can result in unwanted social media attention, negative press coverage, and even civil liability, municipalities in recent years have sought guidance in enacting both constitutionally permissible and practical rules to mitigate against the undesired consequences of these encounters.

What are First Amendment Auditors?

First Amendment auditing can arguably trace its roots back to the beating of Rodney King in 1991.  George Holliday, a Los Angeles plumber, had then recently obtained a new Sony handheld camcorder.  Upon being awakened in the morning by the sounds of sirens and helicopters, he grabbed his camcorder and went onto his balcony to film the fateful encounter between four police officers and Mr. King; the shocking footage was later sent to a local news station.  Following acquittal of the officers on charges of use of excessive force, the 1992 Los Angeles riots erupted bringing to the forefront of the public mind important and longstanding racial, governmental, and social issues.

Since the beating of Rodney King, the proliferation of consumer-grade recording technology has only multiplied the number of persons who can video government misconduct exponentially; indeed, the ubiquity of cell phones and their video capability has practically transformed every single member of the public into an auditor who can capture instances of government abuse into videographic form—often instantly uploaded into the cloud or livestreamed.  The permanent and sometimes powerful nature of these recordings is lauded by proponents of First Amendment auditors, who argue that First Amendment auditors play a pivotal role in keeping the government accountable and transparent to the public.  A recent example of such accountability includes the recording of the murder of George Floyd in 2020 by four police officers in Minneapolis; the footage of the killing subsequently launched global protests against historic racism and police brutality, including the Black Lives Matter movement.

Today First Amendment auditing can be described as a form of citizen journalism or citizen activism that seeks to test and thereby protect certain constitutional rights, including the right to be physically present in a public space and the right to photograph or video record government officials on government property in action (or inaction).  As their name implies, auditors cite to the First Amendment as providing the constitutional bulwark supporting these rights; other implicated constitutional rights include the Fourth and Fifth Amendments, or even the Second Amendment, such as when auditors enter public spaces armed.  The typical auditor practice involves travelling to spaces open to the public—including local governmental offices such as city clerk offices, post offices, police stations, and libraries—and then openly filming or photographing those environs and any persons within them.  Auditors often refuse to self-identify or explain what they are doing, and auditors frequently intend to provoke a police response in order to record instances of police or governmental wrongdoing, or otherwise depict public employees in an unfavorable light.[ii]

That auditors frequently seek to incite confrontation or aggression through harassing or argumentative behavior stems from another motivation besides the asserted protection of individual liberties: namely, to obtain popularity and money flowing from social media views.[iii]  As reported by an increasing number of news organizations, the rising popularity of First Amendment auditor videos has led to a “ruthless competition” among auditors, thereby leading to attempts to create more dramatic videos in order to attract more clicks, subscribers, and advertising revenue for the video uploaders.[iv]  A vivid or violent interaction between an auditor and government officials can result in a video generating millions of views on YouTube and also thousands of donations to the auditor, which have led some auditors to describe auditing as their “form of business”.[v]

These dramatic interactions between auditors and government personnel may result in drastic consequences for a local municipality.  Indeed, if an evocative interaction makes it onto social media, it can result in hordes of auditors and “cop-watchers” descending onto a local city—which is what occurred following an arrest of an auditor for allegedly trespassing in a government building in Leon Valley, Texas.  The resulting video generated social media attention and thus led to more auditors arriving days later.  The ensuing confrontations led to arrests, including one incident in which an individual tried to bait law enforcement by carrying fake rubber guns into another government building.[vi]  The resulting arrests of the various protestors and auditors have led to multiple lawsuits against the City of Leon Valley and its officers via 42 U.S.C. § 1983 actions.[vii]  This problem of confronting disruptive individuals is further compounded with the increasing frequency of school shootings and other terrorism-related events in recent years, which may lead to tensions between public employees who are seeking to protect the health, safety and welfare of the public, and First Amendment auditors who refuse to self-identify and/or behave provocatively.[viii]

Is Video Recording Speech?

A threshold question to the potential regulation of any First Amendment auditor activity, which at its core involves filming publicly accessible spaces on government property and/or filming public employees in the course of their duties, is whether filming counts as speech, and therefore, does the First Amendment apply?

The Ninth Circuit as well as other circuits have concluded that filming is speech, or, at a minimum, necessary predicate activity to speech and therefore is protected activity under the First Amendment.[ix]  The Ninth Circuit squarely addressed the question in Animal Legal Defense Fund v. Wasden (“Wasden”), which concerned an animal rights advocacy organization’s challenge against Idaho’s “Ag-Gag” statute criminalizing a person from entering a private agricultural production facility and making an audio or visual recording of the facilities’ operations without the owner’s consent.[x]  Idaho’s statute was in response to a secretly-filmed expose going viral on the internet, depicting Idaho dairy workers torturing and otherwise mistreating cows.[xi]  At issue in the challenge was whether the Recordings Clause of the Idaho statute regulated speech and therefore was protected by the First Amendment.

The Ninth Circuit held that the statute prohibiting audio and visual recordings regulated speech and was a “classic” example of an impermissible content-based restriction.[xii]  Idaho’s arguments seeking to distinguish the act of recording as mere conduct and not speech were “easily” disposed of, because such arguments were “akin to saying that even though a book is protected by the First Amendment, the process of writing the book is not.”[xiii]   In other words, those steps integral in the speech-making process were entitled to equivalent protection as the speech (here, the film or photograph) itself.[xiv]  Thus the act of recording or creating the video could not be disaggregated from the video; they concerned the same expressive activity.  The Ninth Circuit also emphasized that the act of recording a video was expressive in of itself, explaining that:

[D]ecisions about content, composition, lighting, volume, and angles, among others, are expressive in the same way as the written word or a musical score.[xv]

The decision in Wasden followed several other similar decisions by the Ninth Circuit, all of which refused to create a distinction between what some have urged is “pure” speech—such as an essay or a piece of art—from the process of creating them—such as writing or painting.[xvi]  And, a subsequent decision in Askins v. U.S. Department of Homeland Security reaffirmed and reiterated the logic of Wasden.[xvii]  There, in an action by border policy advocates against the Department of Homeland Security, the Ninth Circuit overturned the lower court ruling and found that the advocates had stated a valid First Amendment claim.  These auditors were taking photographs from public lands and recording activities occurring at the port of entry; they were then detained and their photographs were destroyed.[xviii]  The Ninth Circuit held that the First Amendment’s scope of protection included the right to record law enforcement officers engaged in the exercise of their official duties in public places.[xix]

Other Circuit Courts of Appeal who have considered the issue have endorsed or adopted the same position as the Ninth Circuit, including the First Circuit[xx], Third Circuit[xxi], Seventh Circuit[xxii], and Eleventh Circuit.[xxiii]  And, although the Supreme Court has not expressly considered the issue, recent Supreme Court jurisprudence espouses similar logic as adopted by the majority view.[xxiv]

Regulating Speech on Government Premises

In assessing municipal regulations and policies under the First Amendment it is essential to understand the First Amendment jurisprudence at play.  In order to assess the scope of the First Amendment’s limitation on governmental authority,[xxv] it requires an examination of the forum classification doctrine that the Supreme Court has created for reviewing regulations of expressive conduct in a public space.[xxvi]

The forum classification doctrine is a system of categorizing spaces, and then determining the rules accorded to the specified category.  Forum classification is crucial because the level of scrutiny and the leeway afforded to the government differ based upon the type of forum being regulated, meaning that forum classification may be the deciding factor as to whether the government’s restrictions on a forum survive scrutiny under the First Amendment.[xxvii]

The forum classification doctrine is a complex body of law that often turns on the particulars of the underlying facts, but for purposes of providing a high level overview it is summarized as follows.  Once a court has decided that the activity at issue (such as filming) is protected speech, courts determine the type of forum where the speech is taking place, and then decide whether the challenged limitations on the activity meet the corresponding standard of review associated with that particular forum.

There are four categories of fora: (1) traditional public fora, where people have traditionally been able to express ideas and opinions in public to the public;[xxviii] (2) designated public fora, where the government intentionally opens (or “designates”) non-traditional areas for First Amendment activity pursuant to policy or practice;[xxix] (3) limited public fora, where the government opens a nonpublic forum but has a clear and evenhandedly enforced policy that limited it to certain activities or topics;[xxx] and (4) non-public fora, where the government has not opened a forum to general discourse, and is not by tradition or designation a forum for public communications, such as including where it engages in its own government speech.[xxxi]

Examples of the various types of public fora are provided below.

Forum Classification Examples
Traditional public forum Parks, public streets, or sidewalks.[xxxii]
Designated public forum State university meeting facilities where university opens the facilities to registered student groups; school board meetings where statute provides for open meetings; municipal auditorium and city-leased theater where city dedicates the property to expressive activity; and interior of a city hall where city opens space to display art.[xxxiii]
Limited public forum Public library meeting rooms where policy limits it to certain uses, and public school property where policy limits use to particular groups.[xxxiv]
Non-public forum Interior of polling places,[xxxv] city’s acceptance of privately funded monument for its public park,[xxxvi] and a state’s specialty license plates program.[xxxvii]

 

The classification of the forum triggers the level of review which can be pivotal in determining whether government regulations pass constitutional muster.  A table summarizing the standard of review for evaluating government restrictions on First Amendment activity within different types of fora is presented below.

Form Classification Standard of Review
Traditional or Designated public forum 1. Viewpoint based restrictions are prohibited.

2. Content-based restrictions are subject to strict scrutiny.  The government must show that the regulation is necessary to serve a compelling government interest and narrowly tailored.

3.  Restrictions on the time, place, and manner of speech are permissible, so long as these restrictions are (i) content-neutral, (ii) narrowly tailored to serve a significant government interest, and (iii) leave open ample alternative channels of communications.

Limited or Non-public forum 1.  Viewpoint based restrictions are prohibited.

2.  Restrictions on protected speech or expression are permissible so long as they are (i) viewpoint neutral, and (ii) reasonable in light of the purpose served by the forum.

 

Reviewing and Classifying Public Property

On a practical level, conducting a review of the public property managed by a municipality under the federal court’s classification doctrine may seem a confusing task to local officials, particularly since a municipality may possess varying types of properties.

Nevertheless, some pragmatic guidance is offered to assist in the performance of this review: first, municipalities should consider that they may have defined what “Public Property” consists of under its own Municipal Code, which should therefore be initially consulted.  Second, for those areas under the municipality’s control, the entity should review what oversight authority the entity has, including the power to create rules of conduct.  Finally, in classifying public property, the municipality should look to whether the space has been opened up to the public at large and/or has a history of being used for expressive kinds of activity.  A property’s historical use is relevant to such an assessment, as well as any existing written policies, as courts have found both written policies and historical practices as relevant in discerning a locality’s intent as to whether it opened up a space for public expression.[xxxviii]  In such an assessment, common sense should not be left at the door; simply because a municipality may permit a member of the public to have a meeting with public employees within an office or behind a planning counter does not constitute “opening up” a space to public expression.[xxxix]  When moving forward to characterize different locales and buildings, consider whether a municipality would be required to allow traditional speech in the location; for example, could protestors gather in an employee’s office and demonstrate?  This should provide a useful rule of thumb when starting a review of properties under a municipality’s control.

Finally, practitioners are encouraged to review examples of other localities’ ordinances which are specifically designed to address First Amendment auditor and similar activity, including the City of Portland’s Regulations,[xl] and the Municipal Association of South Carolina, which has also promulgated a model policy designed to address video and audio recording on municipal properties.[xli]

For instance, Portland’s ordinance is designed to apply to the nonpublic forums generally on city property, and attempts to regulate behavior and conduct rather than speech or other expressive activities.  For example, subsection (B)(4) states that:

No person shall engage in activity that disrupts or interferes with: the normal operation or administration of City business at City Property; lawful use by City employees and authorized users at City Property; or City permitted activities.[xlii]

Similarly, the Municipal Association of South Carolina’s model policy, like the Portland ordinance, defines different areas on the property open to public, including “limited access areas” which are generally not open to nor occupied by the public, such as employee offices and workspaces.[xliii]  And, like the Portland ordinance, MASC’s model policy also is designed to address conduct rather than typically expressive activities, such as prohibiting the obstruction or blocking of rights of way, while also empowering the municipality to create minimum standing or separation areas in order to prevent the recording of private, confidential, or sensitive information.[xliv]

Related Issues to Regulating First Amendment Auditor Activity

Aside from the forum classification analysis, other related issues regularly arise and are implicated when considering the nature and extent a municipality may limit First Amendment auditor activity on its property.  These include (1) the ability to prevent or control “loitering” on government property, (2) the rights of other private citizens on government property who are being recorded and who are attempting to conduct business that may be more “private” in nature, and (3) “sensitive” locations on government property. These issues are briefly addressed below.

Loitering. A similar line of regulations that attempt to prevent “loitering” have already been subject to extensive judicial review and therefore provide elucidation as to the ability of municipalities to regulate auditor conduct on similar grounds, i.e., whether it is permissible to preclude an auditor from sitting around in various public settings and filming individuals.  Although helpful, this line of cases tend to demonstrate the difficulties with controlling such activity because filming or photographing falls more squarely within the protections of the First Amendment.

“Loitering” is typically defined as staying in one location without an intended purpose.  The seminal case on this issue is the Supreme Court’s decision in City of Chicago v. Morales.[xlv]  There, several individuals were charged with violating Chicago’s gang loitering ordinance, which required a police officer, when observing a person whom he reasonably believed to be a gang member loitering in a public place with more than one persons, to order them to disperse.  Despite the somewhat targeted nature of the ordinance, the Supreme Court struck down the statute under the “vagueness” doctrine, explaining that the term “loiter” as used in the ordinance—“to remain in any one place with no apparent purpose”—was unconstitutionally vague.[xlvi]  As the Court explained, this is because it is difficult to imagine how any citizen of the City of Chicago standing in a public place with a group of people would know if he or she had an “apparent purpose”.[xlvii]

Private Citizens on Public Property. Another issue arises when other private citizens, conducting business on government property, feel uncomfortable when being videotaped by others.  Such persons may resort to asking government employees to intervene, or desist from coming onto public property altogether.

Such problems are not easily resolved as, generally speaking, it is legal to video record a private citizen so long as they do not have a reasonable expectation of privacy.[xlviii]  Persons in public places are typically found not to possess such a reasonable expectation from being video recorded.[xlix]  However, assessment of the factual setting is critical here as visiting a mental health or a juvenile probation facility may indeed carry with it an expectation of privacy.

Sensitive Government Locations. Another topic worth clarification concerns “sensitive” areas of government buildings that a municipality may wish to allow the public some form of limited access.

With respect to barring or restricting access, the Supreme Court has recognized that municipalities may of course prevent any public right of access to certain locations or areas, because similar to a private owner of property, the government also has the power “to preserve the property under its control for the use to which it is lawfully dedicated.”[l]  Although not dependent on having a characteristic relating to public safety, classical examples of such property over which the government can fully restrict access to include critical infrastructure such as water storage facilities, electric plants, airports, and public utilities.

With respect to limited access, the forum classification doctrine discussed above for potentially “sensitive” locations would apply.  The government should therefore consider if it wants to clearly define and mark which areas are public priority and which are off limits to members of the public.

Practice Pointers When Confronted by a First Amendment Auditor

In drafting or analyzing the legal adequacy of a filming or photographic ordinance (or one regulating activities frequently observed in First Amendment audits, including speech and provocation), attorneys should begin with the assumption that this activity implicates the full protection of the First Amendment.  From there, the analysis should focus on the forum being regulated.  If the forum is a public one (as it will be in the majority of situations), the critical point is to tailor the ordinance to the specific conduct and government interest(s) the regulation is addressing.  For a public forum, municipalities will also need to draft content-neutral regulations except in the rare instances where the regulation is supported by a compelling governmental interest.

While not exhaustive, the following is a list of tips a practitioner should consider for assessing the legal soundness of a First Amendment auditor or similar regulation concerning the filming or videotaping of persons on government property (and similar activities, such as confronting a municipal employee), as well as advice on instructing public employees on the appropriate manner of behavior:

  1. Consider creating guidelines for the government’s property to establish the nature of the public forum involved. In other words, define what areas are open to the general public versus areas only open to employees, like personal offices, workstations, waiting rooms, secure locations, and so on.
  2. Consider adopting guidelines for conduct that regulate only “time, place, and manner”—and not the content.
  3. Craft the guidelines to address and protect cognizable and practical interests the municipality wants to protect—for example, preventing interference with the ability to do the public’s work, or protecting against the invasion of privacy rights protected by law, like minors or health care.
  4. Ensure that the guidelines call out the nature of the public property in a way that is visible or accessible to both the public and municipal personnel.
  5. Ensure that employees are educated in the guidelines.
  6. Ensure that the rules in the guidelines are applied in an even-handed manner and are not only employed against specific persons or speech.
  7. Provide contact information to municipal personnel to ensure they know who to contact when situations develop.

In addition, municipalities should endeavor to ensure that employees specifically are trained in the following to facilitate a constructive or even positive encounter with First Amendment auditors:

  • Employees should know the general legal authority and understand what conduct is or is not generally permissible.
  • Employees should endeavor to stay calm and rational during an audit.
  • Employees should deflect or defuse inflammatory statements and not get angry.
  • If regulations apply to specific behavior or to the forum that a person is in, employees should clearly articulate them and direct the person to the rules.
  • Employees should always assume an audit video will end up on YouTube or other social media platforms.
  • Employees should have information on-hand to reach local counsel should the need arise.

[i] “Men filming voters in Littleton were ‘first amendment auditors,’ police say.”  The Littleton Independent (Nov. 3, 2020).

[ii] See Cardine, Sara. “1st Amendment auditors make police walk the line between enforcement, constitutionality.” Los Angeles Times (July 16, 2022).

[iii] Epstein, Kayla and Selk, Avi. “What is ‘auditing,’ and why did a YouTuber get shot for doing it?”  Washington Post (Feb. 15, 2019).

[iv] Sommer, Will. “The Insane New Path to YouTube Fame: Taunt Cops and Film It.” The Daily Beast (Jan. 24, 2019) (discussing First Amendment auditor activity in Texas, including Leon Valley).

[v] Ibid.

[vi] Ibid. (describing the Leon Valley incidents).  For additional examples, see “Viral video of Ohio police causes outrage, crashes phone line.”  WKBN, 2 News and Living Dayton, (Mar. 14, 2018).

[vii] See, e.g., Miller et al. v. Salvaggio et al. (W.D. Texas April 7, 2022), 2022 WL 1050314 (granting municipal defendants’ motion to dismiss).

[viii] See Thomas, Judy.  “They roam public buildings, making videos. Terrorism experts say they may be dangerous.”  Kansas City Star (Jan. 22, 2019).

[ix] See, e.g., Animal Legal Defense Fund v. Wasden (9th Cir. 2018) 878 F.3d 1184, 1203; see also Glik v. Cunniffe, 655 F.3d 78, 79–81 (1st Cir. 2011); Fields v. City of Philadelphia, 862 F.3d 353, 359 (3rd Cir. 2017); Blackston v. Alabama, 30 F.3d 117, 120 (11th Cir. 1994); Smith v. City of Cumming, 212 F.3d 1332, 1333 (11th Cir. 2000).

[x] Animal Legal Defense Fund v. Wasden, 878 F.3d 1184, 1203 (9th Cir. 2018).

[xi] Id. at 1189.

[xii] Id. at 1203.

[xiii] Ibid.

[xiv] Ibid.

[xv] Ibid.

[xvi] Ibid.; Fordyce v. City of Seattle, 55 F.3d 436, 439 (9th Cir. 1995) (reversing summary judgment in suit involving arrest of citizen filming public protest march, as there was a “First Amendment right to film matters of public interest”); Anderson v. City of Hermosa Beach, 621 F.3d 1051, 1061–62 (9th Cir. 2010) (determining that the tattooing process is expressive activity protected by the First Amendment).

[xvii] Askins v. U.S. Department of Homeland Security, 899 F.3d 1035, 1044 (9th Cir. 2018).

[xviii] Id. at 1045.

[xix] Id. at 1044.

[xx] Glik v. Cunniffe, 655 F.3d 78, 79–81 (1st Cir. 2011) (Holding that there exists a constitutionally protected right to videotape police officers in public. and stating that “[g]athering information about government officials in a form that can readily be disseminated to others serves a cardinal First Amendment interest in protecting and promoting ‘the free discussion of governmental affairs.’ ”).

[xxi] Fields v. City of Philadelphia, 862 F.3d 353, 359 (3rd Cir. 2017) (“Recording police activity in public falls squarely within the First Amendment right of access to information.”).

[xxii] ACLU v. Alvarez, 679 F.3d 583, 595 (7th Cir. 2012) (“The act of making an audio or audiovisual recording is necessarily included within the First Amendment’s guarantee of speech.”).

[xxiii] Smith v. City of Cumming, 212 F.3d 1332, 1333 (11th Cir. 2000) (“The First Amendment protects the right to gather information about what public officials do on public property[.]”).

[xxiv] See Citizens United v. Federal Election Com’n, 558 U.S. 310, 336 (2010) (noting that various laws enacted to control or suppress speech may “operate at different points in the speech process[.]”).

[xxv] Lovell v. Griffin, 303 U.S. 444, 450 (1938).

[xxvi] See e.g., Askins v. U.S. Department of Homeland Security, 899 F.3d 1035, 1044 (9th Cir. 2018) (employing forum classification system to review restrictions on right to take photographs in a public space).

[xxvii] Int’l Soc’y for Krishna Consciousness v. Lee, 505 U.S. 672 (1992); see also PMG Int’l Div., LLC. v. Rumsfeld, 303 F.3d 1163 (9th Cir. 2002); Hopper v. City of Pasco, 241 F.3d 1067, 1076 (9th Cir. 2001).

[xxviii] Cornelius v. NAACP Leg. Def. Fund, 473 U.S. 788, 800, 803 (1985).

[xxix] Perry Educ. Ass’n v. Perry Local Educator’s Ass’n, 460 U.S. 37, 45-46 (1983).

[xxx] Hills v. Scottsdale Unified Sch. Dist., 329 F.3d 1044, 1049 (9th Cir. 2003).

[xxxi] Pleasant Grove City v. Summum, 555 U.S. 460, 467-68 (2009).

[xxxii] See Perry Educ. Ass’n, 460 U.S. at 45-46.

[xxxiii] Widmar v. Vincent, 454 U.S. 263, 267 (1981); Madison Joint Sch. Dist. v. Wisconsin Emp’t Relations Comm’n, 429 U.S. 167, 174 (1976); Southeastern Promotions, Ltd v. Conrad, 420 U.S. 546, 555 (1975); Hopper, 241 F.3d at 1075-6.

[xxxiv] Faith Center Church v. Glover, 480 F.3d 891, 908 (9th Cir. 2007) (abrogated on other grounds by Winter v. Natural Res. Def. Coun., 129 S.Ct. 365 (2008)); Good News Club v. Milford Cent. Sch., 533 U.S. 98, 102, 106 (2001); Arizona Life Coalition v. Paisley, 515 F.3d 956, 969 (9th Cir. 2008).

[xxxv] Minnesota Voters All. v. Mansky, 138 S. Ct. 1876, 1885 (2018).

[xxxvi] Id.

[xxxvii] Walker v. Texas Div., Sons of Confederate Veterans, Inc., 135 S. Ct. 2239, 2245–2246 (2015).

[xxxviii] Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 802 (1985) (examining government practices and policies to determine government charity drive is not a public forum).

[xxxix] Id., 473 U.S. at 805–806 (emphasizing the importance of allowing the government “wide discretion” in controlling its work space and refusing to find that rules permitting limited expression as opening up the space); see also Helms v. Zubaty, 495 F.3d 252, 257 (6th Cir. 2007) (county’s “open-door policy” was not evidence to create a public forum for expressive activity in the reception area outside of county offices); Sammartano v. First Judicial District Court, in and for County of Carson City, 303 F.3d 959, 966 (9th Cir. 2002) (abrogated on other grounds).

[xl] Portland City Code, PCC § 3.18.020, accessible at: https://www.portland.gov/code/3/18/020.

[xli] The Model Policy is accessible at: https://www.masc.sc/policy-regarding-public-access-and-video-and-audio-recording-municipality-property.

[xlii] PCC § 3.18.020(B)(4).

[xliii] Municipal Association of South Carolina’s Model Policy, at pp. 1, 4.

[xliv] Id. at p. 3.

[xlv] 527 U.S. 41 (1999).

[xlvi] Id. at 42.

[xlvii] Id.

[xlviii] For example, under California’s Constitution which provides an inalienable right to privacy to individuals (Cal. Const. Art. 1, § 1), the right only protects an individual’s “reasonable” expectation of privacy.  Ibarra v. Superior Court (App. 2 Dist. 2013) 158 Cal.Rptr.3d 751.

[xlix] See, e.g., Vo v. City of Garden Grove (App. 4 Dist. 2004) 9 Cal.Rptr.3d 257 (City ordinance requiring CyberCafe owners to maintain video surveillance did not violate privacy rights where, among other things, customers had no reasonable expectation of privacy in light of wide use of surveillance equipment in public places).

[l] Perry, 460 U.S. at 46.

 

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Social Media, First Amendment, and Government: The New Rules of Engagement

Social media, email, text messaging and similar communication technologies are transforming governments into a more efficient, effective and dynamic process. Whether it is an elected official using Twitter to address constituents or a city using a Facebook page to make public announcements, entities are becoming more accessible and connected to constituents. While the Supreme Court recognizes the need to apply First Amendment legal theory to modern technology, it has not yet taken the opportunity to rule on the contours of whether, and to what extent, public officials may block or delete comments from their social media accounts.

In the September issue of Western City Magazine, Meyers Nave attorneys Deborah Fox and Margaret Rosequist published an article discussing this issue and new territory of law. Click here to view the full article.

Employers’ Top Three Questions About COVID-19

As COVID-19 vaccines gradually begin to roll out, employers are asking myriad COVID-19 vaccination related questions, including how employers can meet EEOC requirements, increase workplace safety, and minimize risk. Our Labor and Employment Law attorneys are helping California employers navigate the complexity of federal and state laws, MOUs, personnel rules, and practical considerations related to creating and implementing a mandatory or voluntary vaccination policy.

In the February issue of North County Lawyer, Meyers Nave attorneys Arlene Yang and Angelica P. Benito published an article answering the three most common questions being asked by employers.

  • Can employers require employees to obtain COVID-19 vaccinations?
  • Should employers mandate COVID-19 vaccinations?
  • What happens if many employees refuse to be vaccinated?

Please click here to read Arlene and Angelica’s article.

Social Media & Government: What Are the Rules of Engagement?

Government entities and elected officials are becoming more accessible and connected to constituents through the ubiquitous use of social media, email, text messaging and other communication technologies. The 21st century question is what may government entities and elected officials do and not do to regulate the public’s participation in their social media accounts? Once social media accounts are used for official business, there may be limited ability to restrict or block users or comments on the accounts.

In the highly anticipated case involving President Trump’s Twitter account, the U.S. Court of Appeals for the Second Circuit found that the President’s blocking of followers on his @realDonaldTrump account was unconstitutional viewpoint-based discrimination. Deborah Fox, Chair of Meyers Nave’s First Amendment Practice, published an article in the Public Law Journal of the California Lawyers Association that explains the court’s unanimous opinion in Knight First Amendment Institute v. Donald J. Trump. Please click here to read her article.

Knight v. Trump: Second Circuit Sets Rules on Blocking Followers from Social Media Accounts

In the highly anticipated case involving President Trump’s Twitter account, the U.S. Court of Appeals for the Second Circuit found that the President’s blocking of followers on his @realDonaldTrump account was unconstitutional viewpoint based discrimination. In its unanimous opinion in Knight First Amendment Institute v. Donald J. Trump, the Second Circuit affirmed the lower court in full, finding the account to be a public forum because it was opened as an “instrumentality of communication” for “indiscriminate use by the general public.” In deciding whether the President’s Twitter account constituted a public forum, the Court examined the policy, practice and intent in operating the account.

What does the decision mean?
The Second Circuit’s decision makes clear that where government officials open their social media accounts to the public as a way of communicating about official business, then their accounts will be analyzed under the public forum doctrine, which prohibits selectively blocking “persons from an otherwise-open online dialogue because they expressed views with which the official disagrees.”

What doesn’t the decision mean?
The Second Circuit opinion clearly points out that not every social media account operated by an elected official will necessarily be a public forum. The outcome of that inquiry will be informed by how the official describes and uses the account, to whom features of the account are made available, and how others, including government officials and agencies, regard and treat the account.

What should elected officials and government entities do next?
Elected officials and government entities that wish to regulate participation on social media accounts should draft guidelines for posting and removing comments. To pass constitutional muster, factors to consider include making sure that comments will not be hidden or deleted based on viewpoint, users will be blocked only for repeated violations and for a limited period of time, and personnel responsible for managing social media accounts will implement guidelines in a viewpoint-neutral and non-discriminatory manner.

For more information about this case and the state of the law regarding this nuanced area of constitutional concern, please click here to read the article authored by Meyers Nave attorneys Deborah Fox and Meg Rosequist that was published in the August 2019 issue of North County Lawyer magazine.

Update on Workplace Rights of Transgender and Non-Binary Employees

Recent California laws and regulations provide protections for transgender and non-binary employees, ranging from expanding the Fair Employment and Housing Act to prohibit discrimination on the basis of gender, gender identity, and gender expression, to specific regulatory codes that address restroom access, the option for a non-binary gender marker on state identification documents, and preferred names and pronouns. Meyers Nave Principal Camille Hamilton Pating, Chair of the Workplace Investigations Practice, published an article in the Daily Journal’s “2019 Top Labor and Employment Lawyers” special report to help employers understand their obligations and incorporate best practices.

As Camille explains in her article, California employers must review gender reporting programs for compliance under new rules, update harassment prevention training to include gender identity and expression, modify human resources policies and programs to be applicable and accessible to transgender and non-binary employees, and allow employees to use restroom facilities that correspond to their gender identity or expression. However, instead of focusing solely on technical check-the-box compliance with legal standards, employers would be well served to also focus on creating overall inclusive workplace cultures and environments that address the unique challenges and concerns experienced by transgender and non-binary employees.

Please click here to read her article.

New California Law Bans Workplace Discrimination Based on Natural Hair and Hairstyles

California is the first state to protect employees and students from discrimination based on natural hair and hairstyles associated with race. California Senate Bill 188, known as the CROWN Act, seeks to “Create a Respectful and Open Workplace for Natural hair.” The bill unanimously passed the California State Senate on April 22 and the State Assembly on June 27. Governor Gavin Newsom sign the bill into law on July 3.

The California Fair Employment and Housing Act (FEHA) makes it unlawful for employers to engage in discriminatory practices based on certain protected characteristics, including race. The CROWN Act adds that the definition of “race” for the purposes of FEHA now includes “traits historically associated with race, including but not limited to, hair texture and protective hairstyles.” The Act defines “protective hairstyles” to include, but is not limited to, hairstyles frequently worn by African Americans, such as “braids, locks, and twists.” The Act applies to public schools, private employers with five or more employees and public employers.

Overview of SB 188
To help employers implement the law, Meyers Nave Principal Camille Hamilton Pating published an article in the California Newsletter of the Society of Human Resource Management that addresses (1) grooming and appearance policies, (2) state vs. federal law, (3) disparate impact of hairstyle regulation and (4) best practices for employers. Please click here to read the article.

What it means for employers
Camille advises that employers should consider the following when creating a grooming and appearance policy:

  • The policy should be driven by legitimate, objective business needs, not subjective personal preferences.
  • The policy should state the reason for grooming or appearance standards, such as to protect the health and safety of employees.
  • The policy should be equally and fairly implemented and should not disproportionately impact employees in a legally protected category.
  • The policy must accommodate employees’ religious beliefs, where appropriate.
  • The policy should apply to the workplace only and should not attempt to regulate employees’ off-duty appearance.

SCOTUS Expands Statute of Limitations for FCA Whistleblowers

Under the federal False Claims Act, a false claim action must be brought by whichever is later: (1) six years after the violation or (2) “3 years after the date when facts material to the right of action are known or reasonably should have been known by the official of the United States charged with responsibility to act in the circumstances, but in no event more than 10 years after the date on which the violation is committed.”

In Cochise Consultancy, Inc. v. United States ex rel. Hunt, the question considered by the U.S. Supreme Court was whether a qui tam relator could benefit from the longer limitations period provided by Section 3731(b)(2) when the government had declined to intervene in the action. In a 9-0 decision, the Court held that Section 3731(b)(2)’s tolling provision applies to all FCA cases, including ones to which the government has not intervened as a party. The May 13 ruling effectively expands the window in which a private relator may bring a claim, even if the government ultimately decides to stay on the sidelines and not intervene in the lawsuit.

 

A Checklist of Reporting Obligations for Hazardous Material Spills

Almost every industrial facility has hazardous material on site. Small spills or emissions of that material can trigger immediate reporting obligations. Companies that do business in multiple states face the dual challenge of understanding federal release reporting laws and state laws that could impose additional requirements. Meyers Nave Of Counsel Viviana Heger and Andeavor Senior Counsel Deborah Felt published an article in the ACC Docket that helps simplify reporting and provides companies with general legal guidance when spill accidents occur.

Vivi and Deborah’s article includes:

  • Compliance checklist of federal and California laws and regulatory requirements
  • First three investigation steps for every incident to help determine the reporting path
  • Approaches to voluntarily reporting incidents even if under a reportable threshold
  • Overview of penalties and liabilities
  • Answers to five frequently asked questions

Please click here to read their article.

New Safe Sidewalk Vending Act: What Does it Mean for Cities and Counties?

Whether, where, and under what terms to allow sidewalk vending has historically been a question left to each unique city and county to address after weighing the often competing interests of various local stakeholders. All that changed on September 17, 2018, when Governor Brown signed SB 946, the Safe Sidewalk Vending Act, into law. Effective January 1, 2019, sidewalk vending will be elevated to a new and prominent status statewide, and local authorities will be prohibited from regulating sidewalk vending in a manner that is inconsistent with the restrictions and requirements in the new law.

Deborah Fox, chair of Meyers Nave’s First Amendment and Trial and Litigation Practice Groups published an article in The Recorder to help explain the new law and outline what cities and counties need to do in order to comply. Their article answers the questions noted below. Please click here to read their article.

  • What brought SB 946 to the scene?
  • Which sidewalk vendors are covered?
  • How does SB 946 limit local control?
  • How does SB 946 impact decriminalization?
  • What should cities and counties do to comply with SB 946?
  • What are the best next steps?