MMA webinar outlines strategies for ‘First Amendment audits‘

An MMA webinar yesterday addressed the challenge of so-called “First Amendment audits” and strategies for dealing with them. The webinar was led by attorneys Lauren Goldberg and Janelle Austin from KP Law.

Municipalities are increasingly faced with “auditors” who record their interactions with public officials and employees and post these videos online. Goldberg said the auditors hope to “provoke the employees into unlawfully detaining, refusing entry, or otherwise violating their First Amendment rights.”

Austin shared that public offices can prepare by safeguarding all private and confidential documents from the public eye and physically marking private and public spaces. She added that departments should determine in advance who will provide service during a First Amendment audit, as some employees may be more comfortable with confrontational situations.

Austin also provided guidance for how to react when faced with an auditor, emphasizing de-escalation and remaining calm.

“There’s nothing interesting when someone is sitting at their desk doing their work and politely answering questions,” Goldberg said.

The webinar built upon content explored in a previous MMA webinar on First Amendment Audits, held in January 2023.

Goldberg and Austin also discussed recent significant case law related to public comment policies, in Barron v. Kolenda, and flag policies, in Shurtleff v. City of Boston.

Lincoln Town Administrator Tim Higgins moderated 30 minutes of questions and answers, addressing inquiries about public versus private spaces, what personal information employees are required to disclose to “auditors,” and instances involving minors.

 

• First Amendment Audits: Practical Tips for Preparation presentation (1.3M PDF)