Libraries and First Amendment "Auditors"

We’re not the only people with an interest in touring public libraries. A loose cadre of First Amendment “auditors,” acting as activists or citizen journalists, is also out and about to test and document adherence by public officials to the First Amendment (or at least get views on their videos and ignore the purpose of libraries). While typically lawful in their actions, the auditors can be confrontational, hoping to goad people into infringing their rights. We’ve heard from many in the library community about interactions with the auditors, and it can get ugly. This post provides some background and ideas for “passing” a First Amendment audit.

If you’re not familiar with the auditors, they are testing their right to photograph or video record in public spaces. According to the First Amendment Auditing website, audits are “the practice of exercising one's constitutional right to record video for the purpose of educating anyone who attempts to infringe that right and commending those who respect it.” So basically, creating situations where people will err and then be pilloried for it. Charming.

The movement has been active for many years. We first heard about it in 2018, as we began the Library Land Project. We would occasionally be misidentified as auditors, a mistake we were quick to correct. Auditors will arrive at a location - a police station, post office, or public library - and begin recording. Often, they will not identify themselves or their purpose. As you can imagine, this can be disconcerting. 

Disconcerting, yes, but also legal in many cases - but not all. While researching the topic, we came across a reference to Kreimer v Board of Police of Morriston, NJ, a case decided by the US Court of Appeals for the Third Circuit - 958 F.2d 1242 (3d Cir. 1992). It addressed an individual's right to access a public library. It - and associated commentary - mentions libraries as "limited public forums" where "constitutional protection is afforded only to those expressive activities that are consistent with the mission and purpose of the library."

But while there might be an argument to be made that recordings and photography are not necessarily protected activities, any response becomes problematic since the goal of auditors is to goad people into reacting - either to provocations or simply to the situation. The purpose of these audits is content. The more controversial and inflammatory, the better. No one wants YouTube “stardom” for losing it on a patron. Attempting to cite and argue about Kreimer or some other case - whether right or wrong - is not a great look.

So how do you avoid falling into this trap? Let us provide a few suggestions.

First, treat auditors as you would any patron - with patience, courtesy, professionalism, and respect. Everyone has experienced annoying, button-pushing people, and the auditors are simply another variation on that theme. The difference, in this case, is that the purpose of these interactions is to provoke you into providing content that reinforces the auditor’s assertion that libraries and their employees are undermining people’s First Amendment rights.

We looked for resources that might provide advice on dealing with these kinds of provocateurs, and there wasn’t a ton out there. One interesting thing we found was a presentation outlining protocols for responding to First Amendment auditors that was developed by attorney Lauren F. Goldberg of KP|LAW, P.C. in Boston. The original version was created for the Massachusetts Council on Aging, but Goldberg and I spoke and agreed that its information was also applicable to public libraries. You can read the presentation below.

Finally, while this presentation is broadly informative, it isn’t situationally specific. Your town, city, or institution will have a general counsel - either employed or retained - and they are there to provide sound legal advice. Find out who they are in your town or city and have a conversation on preparing for a First Amendment audit at your library.

Hopefully, this is something you’ll never have to deal with. Unfortunately, the expectation is that there will be an uptick in First Amendment audits. This is due to a combination of factors - libraries once again being fully opened, controversies around content, and the increasingly confrontational nature of civic discourse. Awareness and preparation can help protect you and your library from looking terrible on camera!

You can find more information on this issue from the ALA’s Office of Intellectual Freedom. If you have questions or would like to discuss your experience with the auditors, please contact us at info@librarylandproject.org.