As if it wasn’t enough to have First Amendment Audits landing in the front lots of our police stations, we are now responding more and more to these audits involving other locations of concern, such as schools, post offices, and federal buildings. How should your agency respond to these issues?
Overall, we appear to be doing well with our professional police responses to First Amendment Audits. However, a quick trip to YouTube and a searching of “First Amendment audit” will reveal a mixed bag of responses. Some of them are quite upstanding, what I would expect from California law enforcement. Others, not so much.
Of concern and note is that many of the federal buildings are under the assumption that taking pictures of their buildings is not legal. We have established that this is not true, and anyone can exercise their First Amendment rights from property open to the public. This lack of information on the federal level will result in your agency being called due to “suspicious persons” or trespassing activity. Please understand the implications of your actions if they are uninformed and unprofessional. No one wants to be portrayed negatively on the internet, not to mention run through a civil rights violation case. So what to do?
Just like all other actions with photographers, respond with regards to the Constitutionally protected rights in mind. I implore you to weigh the totality of the circumstances and only take enforcement action (based on reasonable suspicion or probable cause) when it exists unequivocally and obviously. The best response lies with you contacting the reporting party (usually the federal security or employees) and informing them of the laws. You will save them and yourselves a lot of work.
In order to be better informed, please take the time to review the de-classified DHS Memo dated 08/02/2010 regarding photographing of Federal buildings. Also of significant importance, is the case law established in Fordyce v. Seattle regarding photographing public officials in the course of their duties. The bottom line is simple: it is NOT illegal to photograph the exterior of these locations. Level headed thinking and knowledge before you go is still the best approach to these types of contacts.
If you would like further information, please contact any one of us from CALRO and we will be happy to help you out or provide training as needed.