Respecting Rights, Reducing Risk: First Amendment Audit Readiness

First Amendment audits are interactions where individuals test how government agencies respect the public’s constitutional right to record and access information. While these encounters can sometimes feel challenging, they provide an opportunity to demonstrate professionalism, transparency, and accountability.

“These interactions are often meant to inflame and provoke a public agency employee, so the interaction can be posted to social media and the employee is subject to the court of public opinion,” said Sara Gibson, Senior Risk Control Manager at Safety National. “Employees who are trained in limiting the contentious interaction can also help minimize potential resulting litigation.”

Here, we review tips that may help with compliance of the First Amendment, while balancing an auditor’s access.

1. Understand the Legal Foundation

The First Amendment protects the right to record matters of public interest in public spaces. Restrictions must be based on time, place, and manner, not content or viewpoint.

2. Adopt Clear and Consistent Policies

Post clear signage for restricted areas (e.g., staff-only or secure spaces). Develop and publish policies regarding recording in public areas. Train staff to apply policies fairly and consistently.

3. Train Staff on De-Escalation

Encourage calm, professional responses at all times. Avoid confrontation or attempts to stop recording without legal grounds. Emphasize courtesy and non-defensive communication.

4. Know the Boundaries

Permissible restrictions: safety-sensitive or confidential areas. Impermissible restrictions: stopping recording simply because it feels uncomfortable. When uncertain, seek supervisor guidance instead of escalating.

5. Communicate Proactively

Acknowledge auditors politely and explain any limits clearly. Offer information about public records request procedures. Demonstrate transparency and cooperation.

6. Document and Review Incidents

Supervisors should record details of any audit encounter. Use audits as training opportunities for continuous improvement. Review and update protocols regularly in light of legal guidance.

First Amendment audits remind us that government accountability is a fundamental principle. By responding with preparation, professionalism, and respect for constitutional rights, agencies can turn potentially tense situations into demonstrations of integrity and public trust.