2025 “First Amendment Auditor” in The Library Roundup

For those who need a little background: a “First Amendment Auditor” is a person who visits (generally) public institutions demanding information that may or may not be available under the Freedom of Information Law (FOIL), often while making broad claims that the First Amendment allows them to engage in intrusive filming and interrogation of employees.

Because their endeavors are usually commercialized on a streaming or video platform, many “First Amendment Auditors” use tactics to create inflammatory and schadenfreude-laden footage of their encounters. After all, who wants to watch a respectful (and thus boring) tour of the new Teen Room?[1] Show us where you hid the payoff to the contractor!

For many years now, I have encouraged libraries to reject the “First Amendment Auditor” label and reframe people engaging in such activities simply as “People Recording in the Library” (“PRILs”). This is because such people—until their behavior crosses a line[2]—have the same rights as any third party who wants to visit the library, learn about it, and either take pictures or film while they are there.

In fact, to treat them otherwise risks a violation of the First Amendment and possibly a few other things!

Because this gig has been trending for a while, the Empire State Library Network conducted a webinar on the subject in 2022 (the slides are available here as a PDF) and published a template Policy and Protocol on Recording in the Library.

The above questions submitted by the member library revising its recording policy are a practical follow-up and provide a chance to show how other policies can work in concert to help manage the concerns caused by the more extreme PRILs. So, for those of you who want a PRIL 101 grounding in this issue before delving into these 301-level questions, check out the links above.

And now, let the 301-level questions begin!

QUESTION: Are staff required to give their first and last names (or any name) to an auditor or member of the public on demand?

ANSWER: No, unless the library has a policy requiring it (such as for name tags to be worn and visible at all times). There is NO state or federal law or regulation that compels a public library employee in New York State to provide their name or other personal information on the spot.

SIDE TIP: A library’s Workplace Violence Prevention Policy should address harassing or threatening demands for information about employees, volunteers, and patrons.[3]

QUESTION: Is photographing and videotaping members of the public in the library without their consent permissible?

ANSWER: A library’s code of conduct should have a broad prohibition on the use of recording devices that can jeopardize the privacy of others. For example, “The ABC Library prohibits the use of technology that risks impeding the private use of the Library by others.”

Policies can also broadly prohibit photography and videography inside libraries; see the answer to the next question for examples.

QUESTION: Is photographing and videotaping in the library allowed “only when consistent with the nature or purpose of the facility (during programming, etc.) or “at the discretion of the Library Director”? Our current policy language reflects this, and it isn’t clear whether this is legally sound.

ANSWER: 100% NO; such a policy is a recipe for disaster.

Instead, a public library should have a clear baseline policy (with photography and videography either allowed or prohibited) and areas that depart from this policy should be marked with clear signage.

For example: “To protect patron privacy and a welcoming environment, the ABC Library is a “no recording, no photography” zone, except for in the Community Room, in the outdoor areas, and for Library events whose attendees grant permission.”

For another example: “Celebrate the Library! We love it when people take photos, stream, and record at our Library. Patrons may even take pictures of library materials to capture information they need for research. However, for patron privacy, the following areas are “no recording or photography” zones: The Reading Room, the Stacks, the Reference Desk, and the Circulation Desk. Recording and photography in those areas is a violation of our Code of Conduct and can result in loss of library access. Please respect this rule!”

Again, clear signage, so people are on notice, is important.

SIDE TIP: To the greatest extent possible, public libraries should avoid things perceived as library service or access being allowed per the “discretion” of the Director. Rather, there should be a baseline rule and a set process for when that rule can be modified. For example, “Recording is forbidden in the Library’s Children’s Room. Those wishing to film a story hour or other event should submit a written request to the Library, and the Library Board will consider a contract for special permission.” The criteria for granting such a request should be uniformly applied.

QUESTION: What exactly can a 1st Amendment Auditor film or photograph?

ANSWER: PRILs can film/record/stream/photograph any area of the Library where they are allowed to engage in such conduct. Again, it doesn’t matter if the person recording is a first-grade teacher with their class, a group of teens doing a dramatic reading of “Emily Wilde’s Encyclopedia of Fairies,”[4] or a cranky person complaining that the couch is dirty; the filming rules should be the same for all.[5]

This brings us back to policy and signage. Any area where the general public cannot go (Director’s office, staff break room, utility closet, etc.) should be clearly designated and—whenever possible—locked.

The flip side of this question is of course: What can PRILs argue they have a right to see?

Any area where a person can take a photo in the library is a place where a PRIL can record. To gain access to restricted area, however, like the mechanical room,[6] the PRIL would need a subpoena or special permission.

QUESTION: Are permissions for these activities different for members of the media; both commercial and independent, self-identifying journalists or media organizations?

ANSWER: This is the true 300-level thinking. As can be seen above, the answer is: NO.

That is the wonderful thing about our democracy. A citizen journalist is born the moment a curious person wants answers.

Of course, a trained reporter tied to a “real” paper (with things like journalistic ethics, editors, and a desire to avoid defamation suits) will often ply their trade more gracefully.

As I write above, a library can pick and choose when it wants to grant access to restricted areas.

For example, if a library is about to start a capital campaign, it could invite a “real” journalist to show the community the need for costly construction. It could also invite a local streamer who they know has a big local audience.

Granting either of these people access to the basement would not mean that suddenly the area is unrestricted and that any person with a camera can come take pictures of the crumbling mortar!

The important thing is that when a library designates restricted areas, unrestricted areas, and which of those areas can be recorded, there is a rational basis that would withstand scrutiny.

At a very small library where the circulation desk and everything else is all within view, a blanket ban on recording to protect patron privacy is easy to justify. At a larger library with areas where recording could be allowed, the board may need to think more deeply about the policy.

The other critical thing is consistent enforcement of the rules. If a library is routinely allowing one person to record and not another, the person denied equal treatment may have a case against the library. It is important to be fair.

It is also important to train library workers and volunteers who might be confronted by an aggressive PRIL on maintaining their cool and using de-escalation. There is more on that on the Ask the Lawyer’s First Amendment Audits on Youtube.

Thank you for an excellent set of questions!