Free Speech

Court Upholds Restriction on Videorecording in Government Buildings,

even if there is such a right to videorecord on public streets, holds a federal district court.

|The Volokh Conspiracy |

So holds a decision Friday by Judge Sheri Polster Chappell (M.D. Fla.) in Sheets v. City of Punta Gorda.

The Eleventh Circuit had held, in a case (Smith v. Cumming) involving videorecording on public streets, that, "The First Amendment protects the right to gather information about what public officials do on public property, and specifically, a right to record matters of public interest." But public streets are "traditional public fora," in which First Amendment rights are generally quite broad; the insides of government buildings are generally "nonpublic fora," where speech can be restricted so long as the restriction is reasonable and viewpoint-neutral.

In Sheets, the court concluded that the same principle applies to videorecording, and decided that a ban on such videorecording of people in City Hall without those people's consent was indeed reasonable:

"The Government, like any private landowner, may preserve the property under its control for the use to which it is lawfully dedicated." Likewise, a government "workplace, like any place of employment, exists to accomplish the business of the employer." "It follows that the Government has the right to exercise control over access to the [government] workplace in order to avoid interruptions to the performance of the duties of its employees."

Based on the preliminary injunction record, the Ordinance places reasonable restrictions on recording at City Hall given its purpose and context. The purpose of City Hall is to conduct "legitimate public business." And the Ordinance restricts recording within City Hall without the consent of those being recorded. {Exempted from this prohibition are public meetings and law enforcement activities.} If someone violates the Ordinance and refuses to stop recording, the City considers that person a disruption of City business.

According to the City's affidavits, prior unconsented recording created disruptions for employees conducting City business. Videos of several City employees circulated on the internet, leading to death threats, suspicious packages in the mail, and so many threatening calls that the City had to shut down its phone lines. Nor does the Ordinance completely exclude Sheets—or anyone else—from City Hall. Sheets can record in any public part of City Hall if he is not recording a person who does not consent. Considering this evidence, the Court cannot say a restriction on unconsented recording is unreasonable considering City Hall's purpose and these circumstances…. "[T]he Government need not wait until havoc is wreaked [on its workplace] to restrict access to a nonpublic forum…." As the Supreme Court noted, restrictions on limited public forums "need not be the most reasonable or only reasonable limitation" to survive a legal challenge….

Sheets also asserts the Ordinance is unreasonable because City Hall has surveillance cameras, so the City is disrupting business with unconsented recording. Yet the Ordinance exempts "law enforcement activities." And using security cameras in a government building is almost undoubtedly a law enforcement activity. In any event, without more, the City using security cameras would not open the limited public forum to unconsented recording by visitors.

And the court held the restriction was viewpoint-neutral:

[T]he Ordinance … does not target any viewpoint, ideology, or opinion. Rather, it regulates the conduct of all City Hall visitors equally without regard to viewpoint. Put another way, the Ordinance applies the same to everyone, no matter why they show up at City Hall with a camera. Unconsented recording and the refusal to stop is defined as a disruption of City business under the scheme. But that does not mean, as Sheets suggests, it targets viewpoint.

To circumvent its viewpoint neutrality, Sheets contends the Ordinance poses a risk of viewpoint discrimination because it does not constrain City employees' ability to withhold consent to be recorded. That is where the unbridled or unfettered discretion doctrine comes in.

"It is long-settled that 'when a licensing statute allegedly vests unbridled discretion in a government official over whether to permit or deny expressive activity, one who is subject to the law may challenge it facially.'" Maybe "the plainest example of an unconstitutional grant of unbridled discretion is a law that gives a government official power to grant permits but that provides no standards by which the official's decision must be guided." In that case, "the official can grant or deny a permit for any reason she wishes."

There are several problems with Sheets' unbridled discretion theory. The most glaring is the standard for preliminary injunctions, and Sheets has not pointed to a single case applying this doctrine to a similar speech restriction. Some others follow.

First, Sheets says the City conceded that the purpose of the Ordinance was to grant City employees with unbridled discretion to restrict recording. As the City notes, this is an inaccurate characterization of the briefing. Rather, the Ordinance seeks to prevent disruptions of the City's legitimate public business and rendering public services, along with fostering a safe and orderly environment. As discussed, the Ordinance is a reasonable restriction to fulfill that purpose. And Sheets presented no evidence to make the Court question that purpose.

Neither party located any cases directly on point, but the Court found one somewhat helpful. In United States v. Gileno, a court considered whether an audio and video recording ban was unconstitutionally overbroad. 350 F. Supp. 3d 910 (C.D. Cal. 2018). There, Gileno went to a federal courthouse with a video camera to film a public meeting of a local police oversight commission. When Gileno tried to bring his camera inside, court security officers ("CSOs") stopped him from doing so.

No court was in session that day. {This fact is relevant because the constitutionality of recording prohibitions in courthouses is well established.} The courthouse had a policy allowing cell phones and computers but prohibiting their use for taking pictures and recording sound or video without approval. Gileno argued the CSOs had unfettered discretion under the policy to prevent recording of public meetings. The court disagreed, holding the CSOs "did not have or exercise unfettered discretion" because they needed "to ensure the safety and privacy of both the judges and staff and make sure they were not photographed or filmed without their consent." As described below, the Ordinance allows far more recording and far less discretion than Gileno. This ameliorates the risk of unconstitutional viewpoint discrimination.

Second, any discretion individuals have to prevent recording is necessarily limited. Under the Ordinance, people can only withhold their own consent for recording of themselves. Put another way, nobody can withhold consent to record anyone else. Nor can a person prevent recording of City Hall's public areas.

So while the Ordinance does not delineate standards to guide withholding consent, any vested discretion is not unbridled or unfettered; rather, it is personal and limited to each individual. Here for instance, Sheets recorded the lobby of City Hall before encountering anyone. Under the Ordinance, no City employee could prevent him from doing that. Similarly, if Sheets had consent to interview someone, a City official could not prevent him from doing so. This limitation on consent ensures no person (City employee or otherwise) can completely prevent First Amendment activity. Thus, Sheets failed to show the Ordinance grants unbridled discretion sufficient to justify a preliminary injunction….

Third, the Ordinance is not a licensing or permitting scheme that grants City officials with discretion to allow or disallow speech. Instead, it simply penalizes unconsented recording that becomes a disruption of City business after the person refuses to stop. To the extent that the Ordinance grants discretion, it vests any person— including government employees and even Sheets—with the power to withhold consent to record them inside City Hall.

All the same, says Sheets, because government employees are among people who can withhold consent, they have unbridled discretion. Sheets cannot cite a single case that supports this theory. This is likely because the doctrine typically applies in a very different context—where one or more government officials have unbridled discretion to license or permit speech. First Amendment concerns are inherent in such a scenario because the officials are left with unchecked power to engage in viewpoint discrimination. What those cases do not address is this situation in which everyone, including a plaintiff, merely has the power to withhold their own consent.

The court even suggested that broader restrictions would be constitutional, too: "[I]f the Ordinance simply prevented all recording, it would probably be reasonable for the reasons described above and there would be no discretion to analyze. So the Court would simply decide whether the restriction was viewpoint neutral. See Kushner v. Buhta, No. 16-cv-2646 (SRN/SER), 2018 WL 1866033, at *9-11 (D. Minn. Apr. 18, 2018) (holding a complete prohibition on video recording a speech in a limited public forum was constitutional because it was reasonable and viewpoint neutral), aff'd, 771 F. App'x 714 (8th Cir. 2019)."

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  1. Seems to me that a public building is a public forum….

    1. Not in individual offices, or in office hallways. The ruling excludes public meetings.

      It seems perfectly cromulent to me. Just because they are paid by the public doesn’t mean the public should be able to walk into their offices under any circumstances, let alone to record them.

  2. What the analysis lacks is any recognition that the government supposedly works *for the people*. No ‘ordinary workplace’ can create a policy forbidding it’s board of directors from monitoring their job performance or workplace conduct.

    1. This is a mistake that many people make, but I won’t blame you for it, because it comes from the rhetoric of the framers.

      The framers, in propagandizing for the enactment of the Constitution, talked a lot about “popular sovereignty”. The thing is, it isn’t actually true. The people can never be sovereign. The whole point of government is you need a group of dedicated public servants to actually make and enforce the rules for a large society. A small indigenous clan might be governable through popular sovereignty, but nothing larger.

      Now you do have the periodic opportunity to replace the people who are running the government. But that’s not sovereignty. Sovereignty is control of the military and the borders and making and enforcing the rules and having a monopoly on the use of force. And the “people” have none of those things.

      So we aren’t the Board of Directors of what goes on inside government buildings. The government decides what goes on there. I can argue that perhaps there should be a level of scrutiny for prohibitions on recording- i.e., that maybe you don’t get to record within CIA headquarters but you can record in the lunchroom of HHS. So I am not saying this decision is right. But it isn’t wrong on a “the people are the board of directors” theory. Popular sovereignty is a myth.

  3. We must shield government officials from the public, said government official

    1. This is a case of one government official protecting another government official from public scrutiny.

      I don’t see why discrete recording of public employees doing the public’s business in public spaces should be prohibited. It would likely point out many employees failing to do their jobs.

      I don’t that that should extend to anyone going into any space where it would disrupt private or confidential discussions.

  4. I was with the decision until they held the City’s own non-consensual recording to a different standard. The assumption that City’s “security cameras” are automatically and always “law enforcement activities” seems unjustified.

    If judges and court officials have a right to be free of non-consensual recording, then you and I should be able to enjoy that same right.

  5. No. Transparency.

  6. But isn’t an attempt to uncover corrupt actions of government actors itself “law enforcement activities?” You are, after all, gathering evidence that you reasonably foresee will be used in a criminal prosecution (or at least, that’s the point of recording).

    Additionally I don’t follow the claim that one can record public spaces, because if agents of the state detect a recorder then almost definitionally they were recorded without their consent, even if they would have freely granted it.

    The judge also skipped a step. The city defined recording as being disruptive, and the judge said that a disruptive action could be prohibited, but made no findings if any sort that mere recordings are actually disruptive. Since a recording can be made surreptitiously it seems implausible that a recording is necessarily disruptive, even setting aside a hecklers veto argument – if a state employee throws a fit at being recorded (which I suspect is what prompted this) then the state agent is the one being disruptive, not the recorder (or the act of recording). Instead the judge appears to have simply accepted that the city could define anything they like as disruptive (maybe with a theory that it could be disruptive) and then allowed it to be banned.

    This seems obviously wrong, as the Supreme Court has repeatedly struck down definitional statutes to fit something into a 1st Amendment exception (usually of the form “…. [stomping on kittens] is obscene therefore unprotected, and henceforth banned….”). Instead, if the city was actually concerned about disruption (as opposed to being caught in a corrupt act) they would simply ban disrupting the operation of the city, and then have to prove that whatever the inquisitor didn’t actually caused a disruption.

    Instead they pass a law that’s exactly what they would write if they only wanted to protect against their corruption being discovered…..

  7. “Videos of several City employees circulated on the internet, leading to death threats, suspicious packages in the mail, and so many threatening calls that the City had to shut down its phone lines.”

    That doesn’t make the act of recording disruptive.

    And I’m really curious what kind of misbehavior was caught on camera.

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