THE DALLES — A First Amendment “auditor,” by filming public meetings and videoing citizens in the street, caused a few calls to the local police last week.
The Dalles Police Department (TDPD) Chief Tom Worthy clarified that “this is not a policing matter,” as filming people in public — ethically or not — is protected by the same law the protects the free press, and protects citizens' right to gather public information.
A First Amendment “auditor” is someone who legally films people in public areas, sometimes trying to start interactions or confrontations with public officials, posts the videos, and sometimes asks for donations to fund their “auditing” work.
“We have had a few calls of a First Amendment auditor around The Dalles ... And they are filming people and recording them, sometimes engaging in open conversation. And that conversation can be offensive or threatening to people, which is all protected by the First Amendment,” Worthy said.
Across the U.S., First Amendment "auditors" have been filming public buildings, officials and citizens in public areas, even causing court battles and the payment of damages, according to a New Hampshire Municipal Association report developed with Drummond Woodsum attorneys in 2023.
During a “First Amendment Audit,” the self-styled auditor stands or wanders through a public space, filming. Sometimes they will try to provoke an encounter with law enforcement or other public officials, knowing they are legally protected by the First Amendment. The goal may be to see if this gets a reaction that violates the First Amendment, the report noted.
“Their appearance will be in, generally, masks or sunglasses; sometimes not. And a camera will be pointed at you,” said Worthy. The videos are often released on YouTube. Some get paid by requesting donations from their subscribers.
The First Amendment of the U.S. Constitution states, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” Courts have said this protects citizen’s right to gather information on public property, and matters of public interest.
“I think that the First Amendment auditors would say that they are journalists. And so they are, they are collecting media, and they are publishing media. And they do make a living that way, sometimes some of them do. And so those rules are in place for a very good reason. And the reason is to protect the freedom of the press, and allow what’s occurring in public spaces to be made public,” said Worthy. However, some “auditors” may behave in ways that disturb people, violate privacy, or cause conflict.
"And they're following the law, but they're definitely not following the golden rule," Worthy said.
An “auditor” can legally film people, including customers, who are visible from public streets, sidewalks, paths, parks and public offices. Any areas not open to the public, like private cubicles or workspaces, are off-limits.
What they can't do, is use the zoom function on a cameras to film something that would not otherwise be visible, or more sensitive settings on microphones to record conversations that could not normally be heard, the Drummond Woodsum report noted.
“Now, they may be doing it with wearing all black, including sunglasses, and masks and gloves and everything else. But if they’re just filming, there’s nothing wrong with that, it’s totally fine. And other times they do attempt to provoke confrontation, and we get calls. So it’s really a mixed bag of what you can expect,” Worthy said.
For example, a drive-through customer reported a person in dark clothing, with sunglasses and a covered face, filming inside customers' cars at a local drive-thru, according to TDPD logs. Law enforcement noted that since the “auditor” was not on private property, was within their legal rights — and was attempting to incite something with law enforcement — they would not respond.
The Dalles gets “audited” occasionally. Often, the city will go long periods of time with no “auditors,” Worthy said. TDPD officers are trained on the issue and know what they can and cannot do in response, he added. They wear body cameras and expect to be filmed.
“The most important thing to remember is that these people who are out doing this have a very good understanding of what their rights and privileges are ... It’s even lawful to stand outside the swimming pool and videotape people swimming by, as intrusive as that may seem.”
An “auditor” can be escorted out for being unreasonably disruptive, and preventing service to other customers, the report noted. And people can call the police if they recognize a crime. “They can never lay hands on somebody. No offensive physical conduct, like spitting on somebody,” Worthy said.
Nor can others touch an auditor. “If you get offended by this, and you lay hands on that person, it may be you who gets in trouble legally, if they’re exercising their constitutionally protected right. So always rise above, always walk away and take the high road, is the best advice,” Worthy said.
He noted that if officers can’t respond to a call about a First Amendment auditor, they’ll let the reporting party know why. “This is not a policing matter, and we understand and wish we could do more for you.”
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