Auditing the First Amendment at Your Public Library
By: Deborah Caldwell-Stone, Director, Office of Intellectual Freedom
A loosely organized social media campaign to “audit” government spaces and agencies for alleged First Amendment violations has begun to target public libraries. The individuals and groups undertaking these self-described “First Amendment audits” claim a right to film in any space accessible to the public, arguing that they’re entitled to do so as taxpayers and citizen journalists. Based on their output, their goal is to create videos of their encounters with police, security officers, and public officials that document a claimed violation of the camera person’s First Amendment rights. The video is then posted to YouTube or other social media, and used as evidence for a legal claim against the targeted agency or its officers and officials.
Now, a growing number of public libraries are reporting that these individuals are visiting their buildings to film and photograph library staff and library users, on the grounds that libraries are “public spaces.”
What does the law say?
The law distinguishes between a traditional public forum, or public square, and facilities opened to the public for a particular use or purpose, like a library or a courthouse. Facilities like libraries and courthouses are considered to be limited public forums or non-public forums1 for purposes of the First Amendment. In limited or non-public forums, the government agency administering the space is only obligated to allow those First Amendment activities that are consistent with the nature of the forum, even if the facility is open to the public.
For example, a courthouse is considered a non-public forum, and many courthouses forbid photography or filming inside courtrooms or the courthouse itself, even though the public may enter and view activities in the building. (The Supreme Court famously forbids cameras in its chambers, even during public hearings and oral arguments.) So while the First Amendment does protect the right to film or take photos when the person filming is located on a public street, a public sidewalk, a public square, or a public park, it only provides full constitutional protection to expressive activities in a limited or non-public forum when those activities are consistent with the mission or purpose of the facility, or are expressly allowed by the facility.
In Kreimer v. Board of Police of Morristown, NJ, an important court opinion addressing a library user’s right to enter and use the library, the court held that because public libraries are a limited public forum, constitutional protection is afforded only to those expressive activities that are consistent with the mission and purpose of the library. A public library is only obligated to permit the public to exercise rights that are consistent with the government’s intent in establishing the library as a limited public forum for the purpose of receiving information and accessing the library’s books, programs, and online resources. According to the Kreimer opinion, other activities, including activities such as photography, filming, petition-gathering, assemblies, and public speeches, may be regulated by the library using reasonable, viewpoint neutral, time, place, and manner rules.
Filming in the library
Given the possible chilling effect on individuals’ library usage, the threat to the library user’s right to privacy, and potential threat of harassment posed by third-party photography or recording, it is reasonable for the library to regulate that behavior in a manner that preserves the individual patron’s right to receive information free from harassment, intimidation, or threats to their safety, well-being, and privacy rights, using policies and procedures developed in accordance with the Intellectual Freedom Committee’s Guidelines for the Development of Policies and Procedures Regarding User Behavior and Library Usage. Of course, the means of achieving this is determined by each library board, in light of the applicable local, state, and federal law and as appropriate to the library’s and the community’s needs and circumstances.
Here are additional guidance and resources for libraries developing or amending their policies to address filming or photography in the library:
- Even though libraries are public places, libraries, and those who work for libraries, should strive to protect users’ privacy when they are using library resources in the library, in accordance with the Library Bill of Rights, the ALA Code of Ethics, and state laws protecting the privacy and confidentiality of library users’ records and information.
- The act of photographing or filming the activities of library users by a third party has generally been addressed as a behavior issue or a media relations issue by libraries. Here are some examples of how libraries have addressed these issues:
- Chicago Public Library specifically bars the photography or recording of library users in its “Library Use Guidelines.”
- St. Louis Public Library’s more detailed “Photography, Filming and Videography Policy” bars photographers from taking identifiable images of other library users and establishes rules for media.
- The Shaker Heights Public Library maintains a Media Relations Policy that addresses both photography and newsgathering in the library.
- Saint Paul Public Library’s “Photography and Videography Policy” requires those who wish to use cameras and/or recording equipment to obtain advance approval from a supervisor, in order to “protect library users who may be endangered or inconvenienced by having their photo or video image taken in the library.”
- Consider policies that allow for photography and filming of the library building and collections that does not invade the privacy of library users. Many people visit libraries to view the architecture, evaluate the collection, or see historic documents or artifacts, and wish to have a photographic souvenir or record of their visit.
- All libraries should take care to clearly identify non-public spaces in the library that are not open to the public or where users have an expectation of privacy, such as washrooms, reservable private study spaces, offices, break rooms, and work areas.
- Carrels, stacks, and computer stations should be arranged in a manner that discourages or prevents someone reading over a user’s shoulder without the user being aware of the activity.
- Avoid practices and procedures that place library users’ personally identifiable information on public view.
- Best practice: Do not engage with First Amendment auditors who are filming in accordance with policy and are not violating library policies that protect library users’ privacy or that prohibit behaviors that constitute harassment of users and staff. Allowing them to film without incident means that they will not obtain the videos that support their social media accounts.
- Different rules may apply to the filming and photography of public library employees. The Digital Media Law Project discusses the right of the public and the press to film public officials carrying out their duties in a public space in this online blog post, “Recording Police Officers and Public Officials.”
- While some “audits” are unobtrusive and do not interfere with the activities of staff or patrons, many library workers are describing a pattern of behavior on the part of some First Amendment auditors that often rises to the level of harassment of staff and library users. This can include a claimed right to interrogate and demand answers from any individual inside the library or invading the privacy of library users by filming and recording their reading or browsing activity in the library. Harassment and abusive behaviors should be addressed as provided in the library’s behavior or use policy.
The Office for Intellectual Freedom encourages libraries to report such incidents using this online reporting form so that we can track their location and their frequency, and offer support.
(Please note that this post provides legal information but does not constitute a legal opinion. It should not be treated as legal advice. Please consult with your own legal counsel for legal advice regarding your particular situation.)
Deborah Caldwell-Stone is Director of the American Library Association’s Office for Intellectual Freedom and Executive Director of the Freedom to Read Foundation. She is a recovering attorney and former appellate litigator who now works closely with librarians, library trustees and educators on a wide range of intellectual freedom and privacy issues, including book challenges, Internet filtering, meeting room policies, government surveillance, and the impact of new technologies on library patrons’ privacy and confidentiality. She has served on the faculty of the ALA-sponsored Lawyers for Libraries and Law for Librarians workshops and speaks frequently to librarians and library organizations around the country about intellectual freedom and privacy in libraries.
- A designated or limited public forum is a place purposefully opened by the government for designated expressive activity by part or all of the public. A nonpublic forum is a place that is neither traditionally used for expressive activities nor set aside or opened up in a substantial way for expressive activities. See the Intellectual Freedom Committee’s Meeting Room Q & A.
28 comments
I understand that first amendment auditors cannot photograph or record library users that infringes on their right to privacy per ALA and individual library policies. What about first amendment auditors approaching staff or other library workers to record, photograph, and potentially interrogate or harass?
A First Amendment right to record public officials carrying out their duties in a public space does not include a right to harass or interfere with public employees as they carry out those duties. Nor does it convey a license to trespass into non-public spaces. Libraries should address harassing behavior by a person filming in the library like any other harassing behavior directed at staff or library users. The library’s behavior policy or code of conduct should be enforced and police called if the behavior violates the law. Please read the Digital Media Lab’s post on filming public officials linked from the main post above. The post identifies the states and jurisdictions that recognize a right to film public officials carrying out their duties in a public space and discusses the limitations on that right.
We haven’t had this happen yet. I’m glad that Alabama code states that all use of the public library is confidential. We can stop people from photographing others without their permission.
All the confidentiality laws I’ve seen seem to apply (exclusively?) to circulation/ registration records. I would be surprised to see courts interpreting this more broadly to video or photography of a patron using a computer, walking around, sitting reading a magazine, etc.
Even if you set aside states’ library confidentiality laws (many states do go beyond circulation records to protect the privacy of library users) libraries may make a decision based on professional ethics, law, and policy to regulate user behavior in a manner that assures every user’s right to “quiet enjoyment” of the library, free from harassment or fear that their reading and research activity will be recorded and disclosed without their consent.
The Digital Medial Law Project’s online blog post referenced above refers to cases regarding police and other public officials. I would guess that most librarians are not “public officials.” A public official is not the same as a public employee or state employee. In Massachusetts this is the definition, Ch. 1 Sec. 268b:
”Public office”, a position for which one is nominated at a state primary or chosen at a state election, excluding the positions of senator and representative in congress and the office of regional district school committee member elected district-wide.
”Public official”, a person who holds a public office.
Sorry that should have been: Massachusetts General Laws, chapter 268B, section 1.
This is an interesting topic. I wonder if a library that uses video surveillance, either inside or outside the building, opens themselves up to more of these type of inquiries?
Really great post. This answered the majority of my questions. When I read this I actually opened up a word document and started taking notes haha.
Most libraries that I have been to have cameras virtually everywhere. No patrons that I know of specifically give written permission to allow being filmed in “public” areas. Why would anyone specifically be offended or harassed by simply being filmed by another member of the public? I think the best practice would be to ignore public photography, especially if you are already being filmed surreptitiously by the library you are patronizing.
I might even hazard a guess that the cameras in most libraries would be more able to glean confidential information than any of the so callled “auditors.
Now that many libraries are closed or partially closed to the public, does this change anything, and how? My library has the front door unlocked & allows patrons one at a time into the vestibule to pick up bagged holds. The second door does not lock, but is clearly labeled as not open to the public at this time. I assume the “auditor” can film in that vestibule, but if they push in past that, they are violating our temporary public closure- what do we do then? The holds waiting are bagged and tagged with last names for no-contact patron retrieval along one wall- if they’re filming basically that whole wall, THAT is also not allowed, yes, as it’s patron names?
The activist auditors are performing a huge public service by exposing the widespread ignorance and lack of training by many, if not most police officers in the wrongful enforcement of law. Unfortunately, library staff are not expected to be as wise to the law and will mistakenly insert opinion and draft “policy” which usurps the law. It would be helpful if library staff everywhere would familiarize themselves with constitutional rights, as they have the greater literary sophistication to understand the difference, and it would facilitate education of the police through audits. The police are more likely where you will find tyrant behavior. that needs correction. I think the Kreimer decision is slightly flawed and should have been appealed to a higher level, although that is an extreme difficulty for a homeless person to pursue.
A precise & well-wrtitten post. Thanks heaps for sharing it.
It would seem to me that video surveillance technically is different than a person coming into a library filming with the intent to publish online. The library is not posting security footage online. It seems unlikely the library users’ rights to confidentiality will be violated. The auditors have made it very clear their intentions are to post online. It seems the greater concern here is the posting. Posting the content might appear to be the real violation of user confidentially. Especially, when it seems like the purpose is to profit.
@Sharon D’Ascensio
With a FOIA (or state equivalent) request, I can obtain a copy of the video surveillance and then publish it online.
@GoodCitizen: actually, that is incorrect in states that have a library records confidentiality statute. Most of these statutes exempt library records that identify a user or reveal their use of a library from state open records laws by stating that they are confidential and only subject to disclosure by court order. Some go as far as to state that library records are NOT public records. Of course this varies from state to state. More information is available via the guidelines developed by ALA’s Intellectual Freedom Committee and its Privacy Subcommittee: https://www.ala.org/advocacy/privacy/guidelines/videosurveillance
Since many auditors have been bounced out of post offices, police stations, and courts, I figured libraries would be next since we’re a soft target. Best to make sure that staff knows library policies and update as needed. I’m glad I retired last year since I would not be civil and if you take a look at some of the content on YouTube from these auditors, including an individual calling himself Good Citizen, you’d get the drift.
Most libraries surveillance camera can be gotten by the public easily. Can I go to a library and request they NOT film me for my personal safety?? As with the Police there are good and bad ones and the same for auditors that are simply standing up for the citizens rights. Someone has to do it because we don’t want to lose those rights!!
So libraries can video you and violate your privacy but you can’t video the very same people doing it to you? I understand in courtrooms your right to privacy but a library is a stretch and I hope it makes it to SCOTUS to have a firm grip on our rights.
ALA’s privacy guidelines urge libraries to carefully consider decision to conduct surveillance for security purposes, including the use of security cameras and carefully weigh the safety and security benefits derived from surveillance with the library’s duty to protect users’ rights to privacy and confidentiality as outlined in applicable state laws and in Article VII of the Library Bill of Rights.
Those considerations – assuring the privacy and safety of library users and library staff, and compliance with library confidentiality laws – underlie policies that regulate individuals’ activities and filming in libraries.
Note that libraries have insisted on court orders from law enforcement before turning over any surveillance footage that they believe record library users activities, while those filming in libraries have not exhibited the same respect for others’ privacy rights.
United States v. Grace, media have the right to access limited public forums and cannot be restricted unless it interferes with the normal operations of the business i.e. blocking an entryway, otherwise restrictions must be narrowly tailored and serve a specific purpose.
There are court opinions allowing the regulation of videorecording in a limited public forum:
Andrew B. Sheets v. City of Punta Gorda, Florida, Case No. 2:19-cv-484-FtM-38MRM (M.D. Florida, November 23, 2019). Online at https://scholar.google.com/scholar_case?case=7030623361318436928&hl=en&as_sdt=400006&scfhb=1; See case summary at Reason.com, Court Upholds Restriction on Videorecording in Government Buildings, https://reason.com/volokh/2019/11/25/court-upholds-restriction-on-videorecording-in-government-buildings/
Jordan Kushner v. Troy Buhta, et al., Case No. 16-cv-2646 (SRN/SER), April 18, 2018), aff’d, No. 18-2099 (8th Cir. June 13, 2019). (concluding that a complete prohibition on video recording a speech in a limited public forum was constitutional because it was reasonable and viewpoint neutral) Online at https://www.casemine.com/judgement/us/5af930023f5bae2082277e1b , affirmed by the 8th Circuit Court of Appeals, https://www.govinfo.gov/content/pkg/USCOURTS-ca8-18-02099/pdf/USCOURTS-ca8-18-02099-0.pdf
In United States v. Grace, 461 U.S. 171 (1983), the Supreme Court ruled that the First Amendment protects protests on the public sidewalks outside the Supreme Court building, overturning a federal law prohibiting picketing on the public sidewalks surrounding the Supreme Court.