Why Public Employers Must Provide Training on First Amendment Audits

In recent years, First Amendment audits—where citizens record public employees to test their response to free speech and public recording rights—have become increasingly prevalent. Public employers must provide training to ensure that their employees understand these rights and respond appropriately. Failing to do so can result in costly lawsuits, reputational damage, and a breakdown in trust between the public and the government.

First Amendment audits typically involve individuals recording in public spaces such as government offices, police stations, or libraries. Employees who are unaware of the public’s right to record may confront or detain auditors, leading to civil rights violations. This can expose municipalities and public employers to legal action under Section 1983 of the Civil Rights Act, which allows individuals to sue for violations of constitutional rights.

Notable court cases illustrate the consequences of failing to respect these rights. In Glik v. Cunniffe (2011), the First Circuit Court ruled that citizens have a clearly established right to record public officials in public spaces, leading to a settlement and changes to police policies in Boston. Similarly, in Fordyce v. City of Seattle (1995), the Ninth Circuit upheld the right to film police in public, setting a precedent for public recording rights across the western U.S.

These cases show that when employees misunderstand the limits of their authority, municipalities can face lawsuits, resulting in settlements, legal fees, and policy overhauls. By providing thorough training on First Amendment rights, public employers can mitigate these risks, ensure legal compliance, and foster a culture of transparency.

Training employees on how to respond to First Amendment auditors not only protects the public’s constitutional rights but also protects public employers from costly litigation and preserves the public’s trust in government institutions.