Misconceptions About First Amendment Audits

There are a number of misconceptions that affect how a First Amendment Audit proceeds. Some are by the public in general, some by law enforcement, and even some by the First Amendment Auditors themselves. Permission must be granted for a person's likeness to be used in a video. While such authorization, generally indicated through a release form, is required in most cases for commercial productions, First Amendment Audit videos have not yet been determined to be commercial productions. Instead, they are viewed as news footage the same as any local television station or national news outlet. Even from a public location, video cannot be taken inside of a private area. This is only partially true and does not cover the large majority of situations encountered. In virtually all states there are laws that prevent the legal filming of certain situations or locations even when occurring in a public location. This would include situations where a person is in a public restroom or similar location, or a location where a suitable attempt has been made to provide privacy, where an expectation of privacy would be somewhat applicable. The mantra for a situation other than that would be, "The eyes cannot be trespassed." This means that, generally speaking, whatever can be seen from the public can be video recorded. Government facilities are private. Nothing could be farther from the truth. Borrowing the phrase, President Abraham Lincoln is attributed to using "of the people, by the people, and for the people," in his Gettysburg Address. This phrase aptly sums up the operations of the government, indicating that the government is made up "of the people." Therefore, any government property would be the people's property, owned by us all. As such, government property is public property. A caveat to this is that Government may restrict entry into certain parts of the property. In doing so, Government is generally required to notify the public of the restrictions through signs and/or barriers such as a fence or door that prohibits unfettered access. If you don't live here, you don't pay taxes. This is often used by law enforcement officials who have been confronted with the fact that they are public servants. The implication by the officials is that, because someone doesn't pay property taxes to the local government, their service and accountability to that person is limited. In reality, virtually all government agencies down to the local level receive public funding through a variety of tax programs. These include federal, state, and sales taxes that are paid by those who do not live in that locale and who do not pay property taxes there. Yet, by paying these taxes, everyone who does so is a member of the specific public that the law enforcement agency serves and by which the agency should be held accountable. Easements are public property. This one brings in a fine line and a technicality. Easements for right-of-way or sidewalks along a roadway are done so for public use. They, however, remain the property of the landowner. Even being the property of the landowner, though, these easements or public use are treated as public property with the landowner not having the authority to trespass someone from them. The U.S. Post Office is a private entity, and its facilities are private. The Second Continental Congress established that Congress was authorized to establish post offices and post roads. This continued with the ratification of the U.S. Constitution in 1789 and Article I, Section 8. Finally, Congress made this complete with "The Post Office Act of 1972, which made the Postal Service a permanent fixture of the Federal Government." Even though it had for many years remained self-sufficient through the sale of postage, USPS has always been an independent agency under the Executive Branch of the Federal Government. As such, it is a government entity, meaning a public agency, and therefore beholden to the taxpayers. Similarly, its properties are public properties with the ability to include properly demarcated restricted areas. As post offices are increasingly becoming the subject of First Amendment Audits, an entire page is dedicated to Audits of the Post Office. One can be trespassed from a government facility or property. As discussed earlier, Government property belongs to the people in general, including Auditors. Most states in their trespass laws include a variation of the condition that the property from which someone is trespassed be that "of another." That means that the property must belong to another, whereas every person owns a part of government property. Therefore, an underlying condition such as a crime committed must be present in order to trespass someone from public or government property. I must provide identification upon request by a law enforcement officer, especially if driving or operating a vehicle. Law enforcement officers will use this misconception to identify someone based on what some deem as suspicious behavior instead of, as the courts have maintained is required, the reasonable, articulable suspicion that the person has committed, is committing, or is imminently about to commit a crime. In virtually every state with a law that requires that a person identify themselves to law enforcement, the charge of "Failure to ID" is secondary to another crime for which a person is being cited or arrested. If I am being detained, law enforcement must tell me why. While reasonable, articulable suspicion of a crime is required for law enforcement to detain someone, law enforcement is under no legal obligation to provide that articulation to the detained. Law enforcement must identify themselves to me. Even though most police departments and law enforcement agencies have widely adopted policies requiring that their officers identify themselves to the public upon request, very few states have laws requiring this. Similarly, where the officer is only bound by policy to identify, infractions of this type are treated as extremely minor by most agencies. This is not a comprehensive list, nor is it intended to be. As other misconceptions are discovered, they will be included here and this page will be updated. If you have misconceptions that you would like to see listed here, please email them to us at tips@southsidematt.com.
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