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CROSSING THE LINE: THE TUG-OF-WAR BETWEEN TRESPASSING AND FREE SPEECH

Updated: Dec 28, 2023

Trespassing laws are crucial for safeguarding personal and property rights. They delineate clear boundaries for where public access ends and private ownership begins, and they ensure that individuals can enjoy and control their private spaces without unauthorized intrusion.

No trespassing symbol -- man with a diagonal line through him

First Amendment auditors often find themselves walking a tightrope of legal and ethical considerations when their activities brush up against trespassing laws. The result can be a complex dance between asserting one's rights and respecting the legal boundaries that govern private and public spaces.


Trespassing Laws and the First Amendment


Trespassing laws are clearly defined at both state and federal levels. Trespassing violations typically require that a person knowingly enter or remain on property without permission.


However, the intersection of trespassing laws and First Amendment rights is not always clear-cut. The First Amendment of course guarantees certain freedoms, including speech, press, religion, assembly, and the petitioning of the government for a redress of grievances. These rights are the foundation of First Amendment audits, where individuals record public officials in public spaces to assert these freedoms and promote transparency.


The key legal questions surrounding trespassing often revolve around (1) whether the space where recording occurs is considered public or private and (2) whether the recorder has a “legitimate purpose.“


Where Recording Is Legal


Let’s talk first about where the recording occurs. Public spaces such as parks, sidewalks, and areas outside of government buildings are typically considered fair game for recording as long as the recording does not disrupt the normal use of the space or violate any specific laws or ordinances. However, the interiors of private buildings or restricted areas of public buildings are generally off-limits without permission.


Several important legal cases have helped define the boundaries between trespassing laws and First Amendment rights. The cases underscore the principle that First Amendment protections extend to the recording of public officials in public spaces. However, they also affirm that this right is not absolute and must be balanced against other considerations, such as privacy and property rights.


Glik v. Cunniffe (2011) affirmed the right to record police in public spaces. The First Circuit Court of Appeals held that a private citizen has the right to record government officials, including police officers, in the public discharge of their duties; Smith v. City of Cumming (2000) recognized the right of individuals to videotape police officers during traffic stops and other official duties as long as the recording does not interfere with the officers' work; and Hynes v. Mayor of Oradell (1976) established that door-to-door advocacy is protected by the First Amendment, which includes the right to distribute pamphlets and gather signatures, reinforcing the notion of public spaces as arenas for free expression.


By contrast, the courts have defined some instances where access can be limited. In Hudgens v. NLRB (1976), the Supreme Court held that the First Amendment does not guarantee access to property owned by others, which in that case was a privately owned shopping center. The Court found that the property owner could exclude individuals from the premises, even if they wished to engage in expressive activities. Adderley v. Florida (1966) involved demonstrators who were arrested for trespassing at a jail. The Supreme Court ruled that the jail's driveway was not a public forum, and thus the government could lawfully prohibit protests there.


Legitimate Purpose


Now let’s talk about what constitutes a “legitimate purpose.” Recording public officials in public buildings is generally regarded as a legitimate activity under the First Amendment, primarily because it serves the public interest in ensuring government transparency and accountability. This form of recording is protected because it contributes to the public's understanding of how public servants execute their duties, a principle upheld in court decisions such as Glik v. Cunniffe and Fields v. City of Philadelphia. These rulings affirm that documenting the actions of public officials in public spaces is a critical aspect of the freedom of speech and press.


The legitimacy of recording does not necessarily depend on the auditor expressing a specific intent for the recording. Instead, it is often sufficient that the recording is conducted in a public area where there is no expectation of privacy. However, the way the recording is carried out can affect its perceived legitimacy. Recordings that are conducted without causing undue interference with officials’ duties, compromising public safety, or disrupting operations are likely to be considered legitimate. Conversely, recordings that impede government functions or create safety concerns might be viewed differently.


Governments can impose reasonable restrictions on the time, place, and manner of recording, provided these restrictions are content-neutral, narrowly tailored to significant government interests, and leave open sufficient alternative channels for communication. Courts have typically upheld the legitimacy of recording as long as it aligns with these legal parameters and the overarching principles of public interest and accountability.


Can I Record Anything I Can See and Hear?


It’s not uncommon for a First Amendment auditor to be filming in a publicly accessible area of a government building, only to be told filming is not permitted. What?!!


First, let’s address the question of when government agencies can legitimately designate an area as restricted. Most importantly, government agencies cannot willy-nilly restrict recording in public areas. Any restrictions must be narrowly tailored to serve a significant governmental interest, and there must be ample alternative channels for communication of the information that is being restricted.


To declare an area restricted, government agencies typically consider the following criteria:


  • Public vs. Non-Public Areas: Public areas, such as lobbies, hallways, and other spaces open to the public, generally allow filming. Non-public areas, like private offices, secure facilities, or areas designated for official use only, may restrict filming for privacy or security reasons.

  • Security Concerns: Areas that are sensitive for security reasons, such as law enforcement offices, military installations, or areas near critical infrastructure, may prohibit filming to protect operational security.

  • Privacy Considerations: Government buildings may contain areas where individuals have an expectation of privacy, such as restrooms, locker rooms, or medical facilities. Filming is typically restricted in these areas.

  • Local and State Laws: Some local or state jurisdictions may have specific laws or regulations that govern filming in government buildings. These need to be considered alongside First Amendment protections.

  • Court Orders and Rules: In courts or related facilities, specific rules or court orders may govern what can and cannot be filmed, often to protect the privacy of litigants, witnesses, and jurors.

  • Reasonableness and Necessity: Any restrictions should be reasonable and necessary for the purpose they serve, not just arbitrary limitations on the First Amendment right to film in public spaces.


But here’s the thing… If I'm in a publicly accessible area, I can still overhear what’s said, and I may even have a photographic memory so I can remember everything I see. Why should I be allowed to hear and see things but not record them?


Well, we’re not aware if this specific question has been addressed by the courts, but various court decisions suggest that the courts may, under limited circumstances, make that distinction.


Here are a few key points that illustrate why recording might be treated differently:


  • Preservation and Dissemination: Recording information, as opposed to simply observing or overhearing, allows for the permanent preservation and potentially wide dissemination of what is seen and heard. This can raise additional privacy concerns, especially in situations where individuals might not expect to be recorded, even in a public setting.

  • Legal Precedents: Courts have distinguished between passive observation and active recording. For example, while you may overhear a conversation in a public place, recording that conversation might be subject to eavesdropping or wiretapping laws, depending on the jurisdiction and the expectation of privacy of the individuals involved. For example, in Hernandez vs. the State of Texas (2004), the court ruled that a conversation recorded without the consent of the parties was inadmissible because one party had an expectation of privacy, thus illustrating the distinction between passively listening and actively recording a conversation.

  • Security Concerns: In certain areas, especially within government buildings, recording might pose security risks that mere observation does not. For example, capturing he identities of undercover personnel can present risks that are not as significant with simple observation.

  • Technological Implications: Modern recording technology can capture and store large amounts of data, potentially leading to situations where sensitive or confidential information is recorded unintentionally. This risk is less pronounced with mere observation or memory.


We’re not saying that these circumstances could or should limit your ability to record whatever you can see or hear. We’re simply saying these are the likely arguments – privacy, security, and the potential impact on government operations – that law enforcement or government agencies will make if they object to recording. At that point, it’s roll the dice with the courts.

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The dance between First Amendment auditors and trespassing laws is a nuanced one, fraught with legal complexities. As auditors exercise their constitutional rights to record and disseminate information, they often brush up against the boundaries established by trespassing laws that protect private property and maintain personal privacy.


Ultimately, the ongoing dialogue and court rulings on these matters reinforce the notion that while the pursuit of transparency and freedom of information is a cornerstone of democracy, it must be pursued carefully. First Amendment auditors would do well to respect the sanctity of private spaces and the legitimate security and operational concerns of public institutions. The challenge is to calibrate these competing interests in a manner that upholds the fundamental freedoms of the First Amendment without compromising well-established rights to privacy and property.


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