First Amendment Bullies

At first, it was a revelation, a guy with a camera testing the limits of First Amendment activity at post offices and police stations. Sean Reyes, of “Long Island Audit,” would poke himself and his camera into parking lots and lobbies and simply film the property and every bit of what the all-seeing eye would spy.

Inevitably, an officious bureaucrat would step forward to question and to stop him.

“What are you doing?”

“Shooting some pictures and video.”

“You can’t do that here.”

“Why not?”

“This is government property. You need permission. And you cannot film me without my permission.”

“I really don’t need permission. This is a public building.”

“No, it’s not. This is a government building. What is your name?”

“I don’t have to give my name; what is yours?”

“I don’t have to tell you that.”

“You do. You work for the public. And this is public property. It does not belong to the government.”

“I am going to call the police.”

“OK.”

The cops would show up.

“What’s going on?”

“I’m just shooting some pictures and video.”

“Why?”

“I’m an independent journalist gathering content for a story.”

“What’s the story?”

“I can’t say just now.”

“What is your name? Do you have ID?”

“What is your name and badge number?”

“Stevenson, badge number 4545. What’s your name?”

“I don’t have to give you that.”

“You surely do, since I am investigating.”

“What are you investigating?”

“We got a call about suspicious activity that is making people uncomfortable.”

“What crime do you suspect me of committing?”

“I am not sure, which is why I am investigating.”

“Unless you give me a reasonable, articulable suspicion that I have committed a crime, then I will not give you my name or my identification. This is constitutionally protected activity. Please call your supervisor.”

And all of this has been happening in the lobby of a post office. Some people mailing letters are angry and show it. “You can’t video me without my permission.”

“You are in a public place. You have no expectation of privacy anywhere in public.”

“You are a jerk.” Often, the name-calling is far worse than this. Lots of Karens out there.

Sometimes, a citizen’s negative reaction would escalate from simple name-calling to pushing and shoving.

Now imagine this happening in city hall or the county courthouse.

Sean Reyes of “Long Island Audit” would go anywhere that is public, turn on his camera, and see what happens. And it always happens that some officious bureaucrat with an attitude comes out and tries to bully him. And then the cops come, sometimes one car, sometimes three or four.

Many lessons to be learned here.

First, government property is not private property; it is public property, and the public has a right to be there.

Second, whatever you can see with your eyes in public can be recorded on video. You have zero expectation of privacy in public. The videographer does not need your permission to film.

Three, cops cannot ID you without expressing a “reasonable articulable suspicion” that you have committed a crime. It does not matter that you have made someone “uncomfortable” or that someone has reported “suspicious” activity. None of that is a crime.

Fourth, bureaucrats can become petty tyrants very rapidly. You have been to city hall and the DMV.

This kind of thing started years ago with something called Cop Watch. Others followed, like a truly belligerent guy from something called Amagansett News who berates shop owners and other civilians who may object to being filmed. Now you can see guys doing this all over YouTube and TikTok.

Some are useful, some are not. There has become this tendency toward belligerence, where the videographer legally points his camera from the sidewalk into stores, and when the owner objects, the “auditor” starts berating them, calling them names, daring them to do something. This takes away from whatever value exists in the practice. This is pure bullying and provocation. It’s still legal, but it takes away the original value of the exercise.

There is one very good one called Audit the Audit, where a very smart guy comments on interactions between civilians and cops, usually caught by the citizen and by the cop’s body-worn camera. The guy takes you practically frame by frame and then determines who was in the right and who was in the wrong, citing specific state and federal case law governing the interaction.

He will finish by saying something like, “Officer Smith gets an F because he immediately escalated the situation and did not demonstrate basic knowledge of the laws governing stop and search.” Citizen Jones gets an A- for knowing his rights and expressing them calmly. But he should have exercised his right to remain silent.”

One of my favorites is a duo of lawyers called Pot Brothers at Law. They don’t interact with cops, but they are experts at what happens when the cops pull you over. They specialize in teaching the five questions, a 29-word script anyone can use when they see the blue lights behind them.

“Why did you pull me over?”

“I’m not discussing my day.”

This is in response to the inevitable questions, “Where are you coming from. Where are you going?” Cops want to get you talking. They have usually seen you do something—speeding, rolling through a stop sign, failure to signal, whatever. They can be fishing, but they also want to know if you have had a glass of wine.

“Am I being detained or am I free to go?”

This is crucial because if you are being detained, this triggers the invocation of the Fifth Amendment, and they have to stop questioning you without your lawyer being present.

“I invoke the Fifth Amendment.”

And then the Pot Brothers say, saltily, “Shut the F— up!”

I used to enjoy the videos immensely when I first discovered them, and I used to run drills with my daughters about interactions with the police. My daughters, and many others, will say, “But shouldn’t we be nice to the police, try to be helpful?” The answer is yes; but remember, there are good actors with badges and bad actors, too. What we have learned in the Covid years, and the Obama-Biden years, is that we must know our rights, protect them, and, above all, exercise them.