How Public Schools Can Survive a First Amendment Audit
By Howard Fencl and Thom Fladung for Hennes Communications
“Nothing in the Constitution requires the Government freely to grant access to all who wish to exercise their right to free speech on every type of Government property without regard to the nature of the property or to the disruption that might be caused by the speaker’s activities.”
U.S. Supreme Court
“What is to stop me from walking into the public lobby of a school and recording? As far as I’m concerned it would be protected first amendment recording.”
First Amendment Auditor, commenting on Reddit
Earlier this school year, in the Dayton area, schools across the region were visited by a man, armed with a video camera, who said he wanted to walk around the school and interview employees on camera.
As the Dayton Daily News reported: When a 25-year-old Dayton man attempted to walk into multiple Dayton-area school buildings this month to record video and ask questions, the school districts – which have increased safety protocols in the past decade – requested that he leave.
When the man pushed back, calling himself a “first amendment rights auditor,” the schools turned to law enforcement.
The incidents raised the question of what access rights the general public has to buildings such as public schools and government offices.
The incidents in the Dayton schools also were part of a practice that’s grown in popularity over the past few years that has come to be called “First Amendment audits.” The practitioners call themselves “First Amendment auditors.” Their actions are intended to test whether or not government officials will protect their constitutionally protected right to take video in a public space. Whether acting solo or with other “auditors,” they show up unannounced in public buildings and prowl the hallways, baiting public workers in order to provoke an emotional verbal or knee-jerk physical response on camera.
They want you to freak out. Many use profanity and intimidation tactics to elicit extreme reactions from public workers and law enforcement officers. Why? Because they upload their “gotcha” videos to YouTube in order to make cash from clicks and ads. Some sell merchandise on their sites. The more you freak out on camera, the more likely they’ll get more viewers, and more cash. Some hope to be roughed up by police or government workers so they can press charges, file lawsuits and bank a fat cash settlement.
Public schools, libraries and health departments have been popular targets. And with the 2024 national election fueling political passions, it’s a safe bet the audits aren’t going to stop.
There are, though, steps you can take to survive a First Amendment audit that are very similar to advice about ambush news interviews:
- Keep your cool. No matter how dark your mood ring is when you’re ambushed by First Amendment auditors, bite your lip, take a deep breath and be as polite, calm and helpful as you can when confronted. Sure, they’re recording video of the encounter, but by being polite, you’re not giving them the bombastic video they’re hoping for. In short, be boring. And offer to give the auditor time – but on your terms: “We appreciate your interest in our schools. This isn’t a good time to talk about those concerns and we can’t allow you to disturb the important educational activities that are occurring on the other side of these doors. However, we’d love to set up a time to talk about your concerns. Can I have our principal/superintendent/board president give you a call?”
- Place prominent signage to identify “employee-only” areas. Otherwise, auditors will assume all areas are public areas in which they have a constitutionally protected right to take video.
- Educate and train staff. Make sure your employees know what a First Amendment audit is, and how you expect them to deal with one. Work with an agency to conduct mock audits to drill employees so they’re confident and prepared should an audit occur.
- Meet with your attorney to review or create harassment and abusive behavior polices. Post them prominently on office signage, on your web site and social media platforms.
- Have a plan. The best insurance against your school getting caught unprepared? Be sure you have a crisis communication plan that anticipates and helps you address a First Amendment audit and other nightmare scenarios your office could face.
Sara Clark, Chief Legal Counsel for the Ohio School Boards Association nots that there is good language in Ohio Revised Code that gives boards of education the ability to “make any rules that are necessary for its government and the government of its employees, pupils of its schools and all other persons entering upon its school grounds or premises.” Under this authority, Clark says, many boards have adopted policies that may include some of the following language:
- All persons on District grounds are expected to abide by all applicable laws, local ordinances, Board policies and District and building regulations.
- To maintain the safety of students and staff and to ensure that no unauthorized persons enter buildings, all visitors must first report to the main office to receive authorization to visit.
- School principals and their designees are authorized to take appropriate action to prevent and remove, if necessary, unauthorized persons from entering District buildings, loitering on the grounds and/or creating disturbances anywhere on District property.
- No person on District property may assault, strike, threaten, menace or use improper, indecent or obscene language toward a teacher, instructor, other District employees or students at any time.
- No person may disrupt, disturb or interfere with the teaching of any class of students or any other activity conducted in a school building or upon the campus or grounds at any time.
- Whoever violates this policy and/or building regulations will be asked to leave the property by whoever is in charge. Should that person refuse, law enforcement officials will be called.
- Use of audio or visual equipment to record classroom activities must be approved by the principal and the teacher. No visitor shall be allowed to videotape students in the classroom, without the prior consent of the principal, as it may violate the privacy rights of students unrelated to the visitor.
As with many potential crises, schools can’t predict when a First Amendment auditor decides to show up at your entrance. But you can plan for it. And, then, you’ll be ready to deal with it.