Rights and Limits on Filming in Public Facilities
April 24, 2023
Category: Guest Author , Court Decisions and AGO Opinions
This blog updates one originally written in 2019 by Aidan Mathis. Aidan was a legal intern at MRSC in 2019 while he attended the University of Washington School of Law.
“First Amendment audits” are a phenomenon that occurs in local government agencies across Washington and the country. “Audits” involve private citizens videotaping or otherwise recording an interaction with their local government — such as the police performing their duties or the day-to-day activities of a government official or employee inside city hall or another government building.
These “auditors” explore the boundaries of their First Amendment rights, testing whether the agency will respond in a way that is consistent with what the auditors believe their rights to be. The actions of the auditors may appear to be confrontational, and at times even seem to be attempting to induce a violation of their rights to serve as the basis of a legal claim against local government action.
This blog will explore what rights have been established for auditors as members of the public, and the available response options for local government agencies when faced with an argumentative auditor.
What Rights Does the Public Have to Film?
Members of the public have a broad right to film interactions with public officials and agency staff — including police officers — conducting business in public areas where there is no reasonable expectation of privacy.
RCW 9.73.030 provides that it is a crime to record any private conversation without first obtaining the consent of all parties engaged in the communication. However, the courts have repeatedly held that this statute does not apply to public conversations between citizens and police officers and other public officials.
The Ninth Circuit Federal Court of Appeals acknowledged a First Amendment right to film police officers carrying out their duties in public in the case Fordyce v. City of Seattle, 55 F.3d 436 (1995). Later, in Lewis v. State, Dept. of Licensing, 157 Wash.2d 446 (2006), the Washington State Supreme Court also ruled in favor of recording public police activity in the context of a traffic stop. In that case, the state supreme court held that there was no reasonable expectation of privacy for a brief conversation between an officer and a driver on a public highway conducted as official business. Such a finding by the court means RCW 9.73.030 is inapplicable when a police officer is recorded in the conduct of their duties.
Additionally, citizens lawfully present at the scene of police activity may express verbal criticism — even profane and abusive criticism — towards police officers performing their duties so long as the citizens do not physically touch the officers or issue threatening statements or movements. See State v. E.J.J., 183 Wash. 2d 497 (2015). The case of State v. E.J.J. can be relied on to allow members of the public to record police officers in the public performance of their duties, even when the recording involves abusive language being directed towards the officers.
The right to record officials in the public performance of their duties likely extends to other government officials in public spaces (e.g., city hall). While there has not been a case explicitly granting such a right, the reasoning behind Lewis v. State, Dept. of Licensing would likely apply to other public employees as well. As with the traffic stop in Lewis, there is likely 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.
The Washington State Attorney General has also opined that citizens have a right to record open public meetings, such as a county commissioners meeting, giving some additional support to the notion that individuals have a right to record their government’s public conduct. Therefore it should be expected that people have the right to record any level government business that occurs in areas held open to the public.
What Can Local Governments Do?
Although the public has broad rights to record their government at work, there are limits that can be imposed. Government entities can control the use of their property, but any restrictions must remain lawful and for a non-discriminatory purpose. For example, the public can be excluded from “employee only” or otherwise secure areas.
Additionally, certain behaviors can also be restricted in public areas to protect public health and safety, and the orderly conduct of government. When the behavior of an auditor violates an established restriction and interferes with the operation of the government or the ability of other members of the public to use a public facility, officials may remove an auditor from public property where there is an expected right to access. See State v. Blair, 65 Wash. App. 64 (1992).
To justify shutting down an audit, a disruption would have to consist of action more egregious than the simple act of recording public activity. To be lawfully removed, the auditor’s actions must make it impossible for an agency to continue conducting business in an orderly fashion. As discussed in the context of police officers above, profane or abusive language does not create a sufficient disruption by itself. If such language qualifies as a physical threat or “fighting words” (words that inflict injury themselves or tend to incite an immediate breach of the peace) or the act (not just the content) of speaking itself is disruptive to agency business, this may establish sufficient cause to remove members of the public.
Local governments also have an obligation to protect their staff even if that harassment comes from a member of the public. If a local official or staff member is subject to harassment based in discrimination due to a protected class (i.e., as defined in RCW 49.60.180 to be age, sex, race, creed, color, disability, etc.), the employer can potentially be found liable under the Washington Law Against Discrimination for allowing a hostile work environment. Read more about this in the MRSC blog: Troublesome Behavior: Defending Against Harassment of Public Officials and Employees.
Local government entities can also act to prevent filming in areas of its facilities that are not open to the public. Auditor access to such areas would constitute trespassing and any conversations recorded would be private and unlawful to record without consent from the parties, as established in RCW 9.73.030. This could include areas behind secured access doors, bathrooms, “employee only” areas, and areas where public access would pose a security risk to people or property.
When an auditor becomes disruptive or disorderly during an open public meeting of a governing body there may be precedent to remove them. Additional information on this topic can be found in a previously written MRSC blog: When First Amendment Rights and Public Meetings Clash.
Ultimately, if an auditor doesn’t run afoul of these boundaries, they have a right to record their interactions. The best advice for public staff and elected officials is to serve an auditor in the same manner as any other person who seeks to conduct official business. Such a strategy may help avoid confrontations and minimize the agency’s liability regarding violations of constitutional rights.
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