Submission Date:
Question:
There are reports of first amendment audits happening in rural towns and villages. Public libraries are limited public forums - how can we stop the filming, as quietly as possible without causing a social media frenzy.
Answer:
For a person who hasn't run into this concept yet, a so-called "First Amendment audit" is an increasingly popular trend where people visit government buildings and demand access to information--along with the privilege to film on site--all in the name of the law, democracy and transparency.
As a lawyer and U.S. citizen, I am all for the law, democracy, and transparency.
The concern raised by the member is that so-called "First Amendment auditors" don't just pop by their local town hall to live out a civics lesson. Most of these folks are "monetized", meaning they post their recordings on YouTube...for money. And since nothing draws in viewers like controversy, in the quest to get tens of thousands of hits, "First Amendment auditors" often[1] swap law, democracy, and transparency for rhetoric, bullying...and borderline harassment.
How do these YouTubers[2] create this concern? As can be seen in their videos, they often come out swinging: filming or streaming while walking around as if "casing" a civic building, knowing that for some workers, this will cause concern. Further, if/when confronted about what they are doing (usually some version of "Can I help you?") the best YouTubers are masters at using standoffish nonchalance, or passive-aggressive behavior, to trigger suspicion and fear.
Sadly, however, it is sometimes the fearful or angry reaction of those being filmed (town clerks, other employees) that tips things into a legal quagmire...and creates "click-worthy" material.
While mainly focused on municipal buildings (town halls, village halls, etc.) a growing sub-set of "First Amendment auditors" are visiting public libraries. I'd put a link in to some of the more egregious examples that have been created in New York in the last year or two, but I don't want to make money for these folks (they are doing just fine without me). Let's just say that when the YouTuber is able to hit all the right pressure points, they can really tick off a civil servant--including a librarian.
The frustrating thing is that this doesn't have to happen.
Libraries--even those wholly housed within a municipally-owned structure--are, as the member says, "limited public forums" meaning that the library gets to set policy and rules imposing reasonable, operationally-related parameters on speech ("speech" in First Amendment jurisprudence, includes the right to film and access information).
Among other things, this means that libraries can totally bar or limit filming to certain areas of the library.
Of course, such a bar or limit can't be arbitrary--it must be "rationally related" to the operational needs of the library. But so long as there is a "rational relationship" between the policy and the needs of the library, such a bar can be enforced.[3]
This means that through policy, a library can decide that patron confidentiality, information access, and the library's overall service to the public require limiting recording and/or streaming on site--a rule that can be enforced just like rules to be quiet in certain rooms, to not eat in certain areas, and to not deface any of the books.[4]
This means that the confident swagger many YouTubers bring to their "audit" game can be met, in the field, with a series of rules restricting their behavior--something (from what I've seen) that many YouTubers are not emotionally nor intellectually ready to honor in the moment. In other words, just because your policy is legal, doesn't mean a YouTuber will magically turn their camera off!
So enforcing such policy requires forethought...especially since most YouTubers know that if they can get in an argument with a librarian, they will double (or triple) their number of hits.
So, as the member asks: "[H]ow can we stop the filming, as quietly as possible without causing a social media frenzy?"
Here are 10 different tactics[5]:
Have a Policy
Have a policy regarding filming in the library, and make sure that any decision to bar filming is rationally related to library priorities such as protecting patron confidentiality, respect for employees, and smooth operations.[6]
Use Good Signage
However your library decides to exercise its rights as a limited public forum, once it is confirmed in a policy, use prominent and effective signage to inform the public about the rules.
Transparency through FOIL
Since claiming the right to film anywhere in a public library is only part of the YouTuber package, make sure your library has a clear policy and process for requesting library records through the New York State Freedom of Information Law (or "FOIL").[7]
Designated Non-Public Areas
All staff rooms, break rooms, and other areas not accessible to the public should be designated as "No Public Access", with appropriate means of securing the area. Give your employees a place of refuge (and a place for private information to securely reside).
Select Your Library's Response and Non-Escalation Method
As we've discussed, if you argue with a YouTuber, you might as well just hand them money.
So, while there is no one "right" way to resist escalating a situation, each library should pick its own particular brand of how to keep interactions with YouTubers civil, non-confrontational, and above all very, very, very boring.
For those libraries that do allow filming (whether without restriction,[8] or with some limits), but want to be part of the narrative, I like the idea of chatty engagement about the library's mission, services, and budget (and fundraising). After all, the YouTuber is there to get information...why not provide it? Think of the YouTuber's visit as a chance to inform the public of the history of the library, to showcase its services, and alert the public as to how they can donate money to support special initiatives (this is a good reason to have a copy of the library's annual report on hand). If YouTube is helping to draw attention to your library, you might as well put your best foot forward!
For those libraries that don't allow filming, or restrict it to certain times/areas, ensuring that a person who is attempting to film in the library is aware of the duly authorized and posted policy is essential. After that, if a person persists in violating the policy, a response is down to what enforcement method is selected and practiced, which can include a combination of:
- Policy enforcement in the moment (using practiced security procedures);
- Policy enforcement after the moment (the recording happens without confrontation, but there is a subsequent action for trespass, or other action under Code of Conduct);
- Deliberate non-engagement with the YouTuber using pre-determined language ("It is against our policy for you to film in this location"; and/or "You do not have my consent to film me, I consider it harassing; please stop." said once, calmly.[9]);
- Use of pre-determined, quiet withdrawal of most employees into employee-only areas.
Do not argue. Do not debate.
And finally, it is important to acknowledge: for some library employees, the visit of a YouTuber can feel threatening (remember, many of these entertainers are trying to get a rise out of people). So as with any other interaction with the public, the clear message to employees must be: Safety First. If employees are feeling threatened, they should withdraw using the same protocol in place for other safety concerns.[10]
Practice, Practice, Practice
Once there is a policy and clear, engaging signage, set aside time to train employees in the policy, and give them time to practice addressing YouTubers in a non-confrontational manner. Use role-playing techniques (done right, this can be a fun exercise, even though the actual event might not be so fun).
Coordinate with Security
Not all libraries have private security, but for those that do, make sure they understand what is at stake when dealing with a YouTuber; include security personnel in the practice sessions (if time and budget allow). At the bare minimum, confer with the local police department to know what the response will be if the situation warrants intervention by law enforcement.[11]
Remember: YouTubers are Human, Too
I know it can be hard to recall when someone is pointing a camera in your face and wandering about your library looking like they are creating a map of its security vulnerabilities, but one thing I've learned from working with libraries who have lived through a "First Amendment audit"[12] is that very often the visitor is a member of the community.
In fact, some libraries have received calls from national groups in advance alerting them that a longstanding member of the community will be visiting to film! (I suspect the "advance warning" was to create an adrenalin rush, but the library was able to use its long-standing relationship with the person to make it a positive interaction.)
So long as a library employee dealing with a YouTuber feels confident about their safety, thinking about the YouTuber as a person who is genuinely curious about your library, and treating them as just another patron on a quest for information, can help cut down on click-bait drama--and serve the mission of the library to provide access to information.
Maintaining that type of perspective is easier if the employee is:
a) confident that they know the library's policy about filming in the library;
b) confident that the policy is clearly posted;
c) confident that the library is on solid legal ground;
d) confident of how the library as a whole responds to Code of Conduct violations;
e) confident that the library abides by the law governing access to information; and;
f) confident about if/how to engage, because they have practiced techniques for positive interactions and non-escalation, and they know leadership will have their back.
And that is how a library can turn YouTube drama into a non-dramatic civics lesson. It is not fool-proof, because if a person is determined to enter a library and create a scene, they will create a scene. But with good policy and practice, a library and its employees won't contribute to it.
Thank you for a great question!
[1] I say "often" because there are some people out there who get this right--and if we are now getting our civics lessons on YouTube, I want to give credit when it is due.
[2] I will not call them "auditors". In my world, an "auditor" reviews your financials, and looks for holes in your fiscal controls. I call them "YouTubers" or "person recording in the library" because that is a more accurate appellation.
[3] For more on that, see the training video and related materials from the Empire State Library Network's presentation, “Libraries and First Amendment Audits,” which are available through the links found here. This resource also spends a lot more time on the legal underpinnings of what I am summarizing in this "Ask the Lawyer"...so if you want more info on this topic, that's the place to go!
[4] In New York, it is also a crime to deface library books...but it can still also just be a violation of policy!
[5] I urge any library considering any of these to view the ESLN materials, and to discuss their selected tactics with their lawyer.
[6] A model policy is included in the ESLN materials.
[7] For more on that, see the Ask the Lawyer response found here.
[8] At the bare minimum, a policy barring filming of: other patrons without written consent, computer screens, the reference desk, and the circulation area(s) is wise.
[9] This can come in handy later, during efforts to remove a video or to pursue other consequences as a result of the behavior.
[10] If the library currently doesn't have protocols for this, a visit with local law enforcement, private security, or a consultant to develop them is a very high priority. This can go hand-and-and with an OSHA-style "Workplace Violence Prevention Policy."
[11] Only your library can determine what the trigger for calling law enforcement is. This is something to be discussed and (yes) practiced.
[12] To hear from these libraries, check out the ESLN training materials I keep mentioning!
