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Candid Cameras: How to Respond to a First Amendment Audit

Wednesday, January 9, 2019

With increasing frequency, municipal facilities have experienced citizen encounters commonly referred to as “First Amendment Audits.” While these audits have primarily targeted law enforcement agencies, other agencies have been targeted as well—including public libraries.

First Amendment Audits are a form of activism in the United States designed to test the rights of an individual to film in a public space. An auditor selects a public facility and then films the entire encounter with staff and customers alike. If no confrontation or attempt to stop the filming occurs, then the facility passes the test; if an employee attempts to stop a filming event, it fails. Many videos of such audits have been uploaded and can be found on YouTube. A number of these videos demonstrate agitated officers or employees, and some have led to unlawful detainment suits.

First Amendment Audits do not appear to be associated with any particular organization; rather, they seem to be conducted by individual citizens interested in filming their encounters with public agencies. On occasion, audits have taken place during public comment periods of governing body meetings.

So what does this mean for Wisconsin’s public libraries? It could mean a First Amendment Audit by someone in or near your community. And how does this affect patron privacy and confidentiality? Staff training is essential if you plan to protect your library from a “First Amendment Audit Fail.”

When training staff, be sure to differentiate between personal recordings created by individuals from outside the library organization, and “records” produced or retained by the library. While the library has an ethical and legal obligation to protect library records, it cannot—and should not—present the library as a sanctuary of private and public anonymity. In truth, the library is a public space and, as such, there is no justifiable reason to prohibit a person from filming in a library, unless perhaps it is for the purpose of harassment, or where there is a reasonable expectation of privacy (such as in a restroom). In addition, make sure they understand that, unlike those created by the public, any photographs or video produced by library staff and volunteers may be in violation of s. 43.30 of the Wisconsin Statutes if used without permission.

So when that auditor walks through the door, let them film away! After all, it is a free country.

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For questions about this information, contact Shannon Schultz (608) 266-7270