Government Building Audits

Any property that is owned by the Federal, State or Local government is publicly-owned property.  Not all publicly-owned property is publicly-accessible property, however.  The government does have the ability to earmark certain limited peices of property for a dedicated and specific purpose (such as jails/prisons, courtrooms, parks, schools, government service offices, etc).  Public property can be broken down into three basic categories.  

Some publicly-owned property is not freely available to the public without some sort of restriction, if at all.  Courtrooms, as well as jails/prisons do not allow the public to come and go freely and/or have restrictions placed on members of the public who do visit.  These areas are known as a "Non-Public Forum".  This also includes places such as the restricted areas of schools, police stations, fire stations, and the interior of government office buildings (other than the building entrances, lobbies, foyers, corridors, or auditoriums).  Although, the right to free expression is severely limited in these forums, this does not by itself limit the ability to record matters of public interest.  

Some publicly-owned and publicly-accessible properties, such as libraries, are considered a "Limited Public Forum".  They are a type of designated public forum that are "subject to strict scrutiny for right to access information".  This is most evident by the tradition of being quiet in a library, as not to disturb others while they access information.  Being that a library's primary use is to access and gather information, publicly recording matters of public interest fall into that purpose and are therefore permitted in these areas, as long as the activities themselves do not disrupt or disturb others as they exercise their right to access information.  Examples of disrupting or disturbing behavior/activities include: excessive noise, bumping into people or property, blocking pedestrian traffic, intrusive or blinding lighting;  However, the act of recording, itself, cannot be deemed a disturbance.

Finally, there are publicly-owned and publicly-accessible properties which are deemed a "Traditional Public Forum"; such as sidewalks, roads, parks, town squares, or other public property that has traditionally been used for the free exchange of ideas.  These forums are very strictly protected by the 1st Amendment, and backed by many rulings by the Supreme Court of the United States (SCOTUS).  In the landmark 1941 case, Cox v. New Hampshire, SCOTUS clarified this issue with the unanimous 9-0 ruling:

"The First Amendment requires that the government not discriminate against particular viewpoints. However, that speech may be regulated under “Time, Place, and Manner” regulations. The burden of such regulations is still fairly high, requiring the government to show that their restrictions on speech are (1) content neutral (that the government does not outlaw content specific viewpoints), (2) narrowly tailored to serve a governmental interest (i.e., cannot be overly broad to regulate more than what is necessary to achieve government interest like, for example, public safety), and (3) ample alternative means to express ideas."
~(https://louisville.edu/freespeech/timeplace)

The 9th Circuit Court of Appeals case, ASKINS vs. Department of Homeland Security (2018), held that "the First Amendment protected the right to photograph and record matters of public interest, and whether a place was 'PUBLIC' depended on the nature of the location." It went on further to state, "it (is) the government’s burden to prove that the specific restrictions were the least restrictive means available, and general assertions of national security were insufficient."  This allows anyone within the 9 states covered by that court to collect information of public interest (aka NEWS) with minimal government intrusion while on public property, unless they can prove that the restrictions are the absolute least restrictive means possible to achieving the specific government interest.  This opens up publicly-accessible areas of public buildings to be recorded for matters of the press, and since the 1948 case, McDonald et al v United States ruled that "the eye cannot commit the trespass condemned by the Fourth Amendment", anything that is within public view is able to be recorded, as well.  They are required to create their own privacy for confidential materials, and one that does not limit or restrict the 1st Amendment protected activities of a free press.  The difference between a wall and a window is more than aesthetics. 

Also in 2018, Department of Homeland Security released a memo, (HQ-ORO-002-2018) dictating the conditions of public recording in federal buildings.  It went on to explain that recording in public is a protected 1st Amendment activity, and clearly laid out the areas that are considered 'public' for news purposes.  And remember, ANYONE with the means (your smartphone), a story (the matter of public interest) and an audience (Facebook, YouTube, Instagram, TikTok, etc) ARE the press!  The responsibility belongs to us all!

We are not attorneys, and nothing contained in this website (including videos or any other materials originating on this site, or linked from a 3rd-party website) is to be construed as legal advice.  We are a News Service that provides information to the public that has been verified as accurate, to the best of our ability, at the time of publication.