By Jacob Rueda
Cameras have been used to document some of the most dramatic moments in modern history. From the destruction of the Hindenburg in 1937 to the death of George Floyd in 2022, cameras have captured the best and the worst of human achievement.
Despite that, capturing video is not always used for higher purposes. Nowadays, it can be used to demonstrate just how far in the fringe some people are, or show off how irresponsible and dense others can be.
Whether it is to amuse, shock, or educate, the use of cameras to document human activity has led to an evolution of consciousness, for better or worse. For example, one man's camerawork galvanized a nation and created chaos in one of America’s largest cities.
Video of Rodney King beating by LAPD Officers (George Holliday)
Early morning on March 3, 1991 in Los Angeles, a group of LAPD officers huddled over 26-year-old Rodney King and his friends during a traffic stop and beat them. Around that same time, a plumbing salesman named George Holliday was hanging out in his apartment nearby with a camera.
The actions of all of them combined marked the beginning of the most intense backlash against police since the Civil Rights Movement of the 1960s.
Although there were a series of high-profile police brutality incidents in the last 30 or so years, notably the beating of Rodney King, nothing electrified the world like the death of George Floyd by former Minneapolis Police Officer Derek Chauvin.
Darnell Frazier was there and she filmed the entire incident. Her video went viral and led to mass protests across the United States. She was recognized for her work by the Pulitzer Prize board in 2021.
Scrutiny toward police has grown exponentially since then. However, few of them have had the impact and media appeal that Floyd’s death had. This has led some video makers to see just how far they can push authority before they can claim victimhood in the name of “independent journalism” and accountability.
In a paper published for the Communication and Democracy journal, Sean T. Leavey, an adjunct professor at LaRoche University in Pennsylvania, describes First Amendment auditing as “a practice in which people use public photography to test the street-level application of civil rights by police and other public employees.”
This so-called "auditing" has individuals with cell phones or some other portable cameras walking into post offices, city halls, police stations, private businesses, and sometimes, military installations. If they gain entry, they ask probing questions. They proceed to record whatever is around them, including their interactions with workers and whomever happens to be around them at the time.
First Amendment “auditors” consider themselves citizen journalists. In their view, they are working to uncover possible corruption and hold government workers and police officers accountable in the name of the First Amendment of the United States Constitution.
Although they see themselves as investigative journalists, what First Amendment “auditors” actually practice is “yellow journalism,” which is using sensationalism to boost a story.
“Auditors” are conscious of how potentially money-making such content can be. Using the antipathy toward law enforcement and distrust in government, they create situations which are full of tension. Such confrontations have the potential for high viewership.
In a sense, they follow the adage of “If it bleeds, it leads.”
What these individuals are not aware of, aside from the basic tenets of actual journalism, is the legal technicality involved in establishing a right under any of the amendments of the Constitution. They are also painfully ignorant of contextual definitions of words like “public” in reference to what access a person has to an area.
It can be said with certainty that not many people have read the Constitution, let alone understand its purpose. Any careful read of the Bill of Rights, which are the first ten amendments of the Constitution, would note that none of the amendments explicitly grant rights to anyone. What they do is lay out the limits of government.
The First Amendment says that Congress shall not make laws establishing a national religion, first and foremost. The second part says no law shall be made “abridging the freedom of speech, or of the press.” The word “speech” in this context likely had a different meaning in the 18th century when the Constitution was originally written.
Lastly, it establishes that the government shall not make laws restricting citizens from peaceable assembly.
It is important to note that nowhere does the text of the First Amendment say, “People can say and do whatever the fuck they want to whomever they want whenever they goddamn well please by whatever means they want, period.”
Numerous case law establishes how speech and the press are and are not protected under the First Amendment. Any trained journalist or communication expert will know that protection is not unlimited.
“Auditors” appear to believe that through some whimsical idea of freedom, they are at liberty to pursue their story regardless of where they intrude or who they encounter.
They also fail to understand that a “public” space is far from an unrestricted space. Although a public space is publicly funded, law, policy, and circumstance establishes the limits of access people can have in an area.
For example, a sidewalk or street is a public area. However, if there is police activity or if there is construction going on, access becomes limited to a select and qualified few for the public’s safety.
But despite all of this, "auditors" are relentless in harassing people to the point of either being escorted out or arrested. All of it is documented and posted on YouTube for monetization.
When it comes to recording police, the case of Turner v. Driver established the rights of individuals to do so. Judge Jacques L. Wiener wrote that despite that right, there were limits to when police could be recorded. He also wrote that police had a right to question anyone who was recording them.
In essence, a person can record police from a reasonable distance. However, a person cannot get in the way of an investigation while they are recording police.
That case, like many others, established the parameters of what actions people can take in the course of exercising press freedoms under the First Amendment. “Auditors” as “independent journalists” with cameras appear to have a hard time grasping that reality.
The incidents with Rodney King and George Floyd established the power of video as a tool to achieve social justice and accountability. First Amendment “auditors” take that and twist it for their own benefit without actually instigating any real social change. If anything, they’ve become agitators and authorities are on the lookout to protect themselves and the public from them.
Holding public officials accountable has come with a price for some journalists:
Daphne Galizia, an independent journalist in Malta, died in 2017 when her car exploded. At the time, she was investigating corruption within the Maltese government. As a result of her death, Prime Minister Joseph Muscat stepped down in 2019 but denied involvement in corruption.
Ján Kuciak, a Slovakian investigative journalist working for the news website Aktuality.sk, along with his fiance, were shot to death in their home in 2018. Former Prime Minister Robert Fico and his cabinet resigned as a result of an investigation in Kuciak's murder. One man is in prison for carrying out the murder.
Las Vegas Review-Journal investigative reporter Jeff German was stabbed to death outside his home in 2022. Robert Telles, a local politician, is accused of murdering German, who wrote about allegations of Telles creating a hostile work environment and an inappropriate relationship with a staffer. Telles' trial is scheduled to start in November.
The difference between these journalists and First Amendment "auditors" are plenty.
Galizia, Kuciak, and German received formal educations in public universities and held degrees in their respective fields.
They all worked for newspapers, which meant they all had field training which built on the training they received in school.
Their education and field experience meant that they were credentialed.
Their credentials provided them with the necessary access to gather the information needed to write their stories.
Their approach to investigating corruption did not involved shoving a camera into people's faces and claiming protection under the misguided interpretation of a law.
What "auditors" do is nowhere near the same league. But while not all investigative journalists end up dead, the work that "auditors" do doesn't have to end up on YouTube to serve as fodder for those who disparage what they do. If approached differently, it could actually serve the purpose they seek to achieve even without the formal training, although it doesn't hurt to have it.
But for whatever they fail to grasp, First Amendment “auditors” speak to a disaffected segment of society that believes in what they do. No matter who they intimidate, they see themselves as victims of an oppressive system, and they are ready to record that perceived oppression at whatever cost under the guise of freedom, the First Amendment, and independent journalism.