Rights and Limits on Filming in Public Places
The Bill of Rights comprises the first ten amendments to the United States Constitution.
“First Amendment audits” are a recent trend that has been occurring in local government agencies across Washington and the country, including a neighboring PUD. These “audits” typically involve private citizens videotaping or otherwise recording an interaction with their local government — such as the police or another official in performing his or her duties or the day-to-day activities inside the PUD, on a job-site, or in another government building.
These “auditors” are intentionally pushing the boundaries of their First Amendment rights to see whether the PUD responds in a way that is consistent with what the auditors believe their rights to be. These auditors may be belligerent or confrontational, sometimes attempting to induce a violation of their rights, which can then serve as the basis of a legal claim against the local government.
For starters, this is what Article 1 of the Bill of Rights (the “First Amendment”) says:
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.
What rights does the Public have?
Citizens, customers, and community members have the right to congregate in PUD 3’s public spaces such as the public parking lot, customer service lobbies, public rights of way, and the auditorium.
They have the right to film or record their interactions with PUD employees as well as PUD employees going about their business- which would include work in the field.
They have the right to record open public meetings, such as PUD 3’s commission meetings.
Under RCW 9.73.030 it is a crime to record any private conversation without first obtaining the consent of all parties engaged in it.
The courts have repeatedly held that this law does not apply to public conversations between citizens and police officers.
Citizens lawfully present at the scene of police activity may express verbal criticism—even profane and abusive criticism—towards police officers carrying out their duties so long as the citizens do not physically touch the officers or issue threatening statements or movements.
We should infer the above applies to PUD employees as well.
What rights does the PUD and its Employees have?
This is an example of the “NO PUBLIC ACCESS” signs that have recently been installed around PUD 3 facilities.
Although citizens have broad rights to record their government and representatives, which includes PUD 3 employees, there are limits to allowable behavior.
If the behavior of an auditor or other citizen interferes with the operation of the PUD or the ability of other members of the public to use a public facility, an auditor may be removed from public property they would otherwise be entitled to be in.
Note that such a disruption would have to consist of more than the mere act of recording. In order to be lawfully removed, the auditor’s actions must make it impossible for PUD business to continue in an orderly fashion. Unfortunately, while you can ask a member of the public to not use profane or abusive language, this doesn’t create a sufficient disruption by itself either—only if such language qualifies as a physical threat or “fighting words” (words that inflict injury themselves or tend to incite an immediate breach of the peace). Intimidating a public servant is a Class B felony in Washington State (RCW 9A.76.180). If the act (not just the content) of speaking itself disrupts business, there is cause for members of the public to be removed.
PUD 3 can also act to prevent filming or trespassing in areas of its facilities that are not open to the public. Auditor access to such areas would constitute trespassing, and any conversations recorded would be private for the purposes of RCW 9.73.030. PUD 3 facilities have signs that clearly communicate “NO PUBLIC ACCESS”. An established work zone in the field also includes a no-admittance area as established by PUD employees on-site. These boundaries are put in place for the public’s safety from hazards they may or may not see or be aware of.
What should you do if you encounter an auditor?
Ultimately, if an auditor doesn’t run afoul of these boundaries, the best advice for PUD 3 staff is to ignore the auditors and not engage with them except to conduct business. Otherwise, a confrontation with an auditor may lead to a public allegation of a “violation” of their constitutional rights, both in the press and online, and perhaps even to a court challenge that the jurisdiction has attempted to violate the public’s constitutional rights.
As with all customer interactions, BE POLITE. If you feel threatened, use language that clearly says, “I feel threatened.”
If you observe an auditor at PUD 3 filming or recording you or your job site, please notify your supervisor as soon as possible. The supervisor may become the main point of contact for this member of the public to conduct their business with the District.
Emergency Response Prepared Statement
If PUD 3 emergency response has been activated (e.g. outage restoration efforts), you may be approached by citizens or the media requesting an update. Please use this prepared statement to ensure we are communicating with a unified voice:
We have activated our emergency response plan.
Safety is our number one priority. (For that reason, I need you to stay out of the work zone.)
We know you need information and PUD 3 is committed to providing it.
I’m not the spokesperson for the utility; however, I can put you in touch with the person who is.
If you have any questions, please talk to Lynn, x. 5295, Justin x. 5323, or your supervisor.
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Much of the content of this post came from this article.