By RAY CARBONE
On a sunny Tuesday morning in November, Josh Abrams of Stoneham, Mass., entered the historic town hall in Warner. He walked into the office of Town Administrator Kathy Frenette carrying a camera.
“Is that on,” Frenette asked Abrams.
“Oh, yeah,” he answered.
“I don’t want to be recorded,” she said. “Who are you?”
“I don’t really feel like giving you my name or anything,” he replied.
“Then you have to leave my office,” the administrator said, leading him towards the door.
Abrams wouldn’t leave. “This is a public office, Ma’am,” he said to her.
Within minutes, the normal staid atmosphere of the small town building was in turmoil. Selectman Harry Seidel joined with other town workers and members of the public to watch Abrams’ interaction with Frenette.
Some tried to get him to stop recording. One offered to take them to another part of the building. Someone called the police, and two officers soon arrived and threatened to arrest Abrams for “disorderly conduct.”
“Disorderly conduct is loud, violent or tumultuous behavior,” none of which he exhibited, Abrams said. He stepped outside for a moment to make a phone call and returned to find all the office doors locked. When he went out again a few minutes later, the front door was locked with a sign posted that read, “TOWN HALL IS CLOSED TODAY.”
When Abrams finally left Warner a few hours later, he told his YouTube viewing audience of several thousand people that he was planning to sue the town.
Last week, Selectboard Chair Mike Smith was asked if Abrams had followed through on his threat.
“Lord, no,” Smith said.
What is a First Amendment Audit?
What Frenette and her town hall colleagues experienced that November day is called a First Amendment Audit (FAA). FAAs are typically undertaken by one or two private citizens who enter a government building unannounced and begin video-recording whatever they see. Their goal is to see if officials and employees understand the First Amendment’s “freedom of the press,” which includes recording public activities of officials and employees.
The interactions can be uncomfortable for municipal representatives, but they are not illegal, according to Margaret M.L. Byrnes, executive director of the New Hampshire Municipal Association. “Citizens have the right to be in a public space and record what their government is doing.”
Justin Silverman, executive director of the New England First Amendment Coalition, said that the activities could even be beneficial. “Having someone go around and do an audit can be a public service,” he said. “It’s helpful to know when there are agencies – and in some cases law enforcement agencies – where we can’t exercise our rights. And it can be helpful to share with the public when those right are being infringed upon somewhere.”
First Amendment Audits have been around for years, but they’ve recently become more prominent, a significant social media and political phenomenon spurred on by the taped recording of George Floyd’s murder and increasing doubts about government activities related to COVID-19 restrictions.
YouTube channels with names like “Transparency Talks Now” and “Audit Rewind” show scores of government officials and employees who are caught off-guard by the auditors and respond defensively in ways that are sometimes illegal or against regulations. Thousands of people subscribe to the channels and voice their support of the auditors – and share anger at the government representatives in the comments section.
Not surprisingly, the most dynamic YouTube videos involve police officers. They are the most visible representatives of government and interact with all kinds of people.
There are hundreds, if not thousands, of “cop-watch” videos on YouTube from all over the country, some showing startling incidents of police misconduct.
While anyone can do a First Amendment Audit, and post the video on social media, there are people who specialize in the practice. Abrams works mostly in Massachusetts; the most prominent Granite State auditor is probably Marc Manchon of Keene, whose “Press NH Now” YouTube channel has more than 500 videos and over 183,000 subscribers.
“I characterize myself as an independent journalist-activist,” Manchon said. That description generally agrees with other regular auditors who see their work as helping to promote freedom of speech and governmental transparency.
Education or Audience?
But there’s also sometimes a financial incentive to the auditors’ work.
Some YouTube auditors regularly ask viewers for donations. They can also make income from advertisers, and there have been some incidents when a video was considered to be so possibly injurious to a community that a lawsuit leads to an award or an out-of-court settlement.
One Colorado municipality paid an auditor $41,000 to settle one claim. After Warner Town Attorney Michael Courtney learned about Abrams’s visit to the town, he quickly invited him back. Courtney opened up all the public offices to allow Abrams to video-record anything he wanted.
“I’m sorry for any miscommunications,” he told him.
There is no public record of an auditor winning a suit or a damage claim in New Hampshire. Manchon filed suit in U.S. District Court against Charlestown Police Chief Patrick Connor and a dispatcher on his staff, charging them with violating his First and Fourth Amendment rights during a 2021 altercation in the police station lobby.
Silverman said some auditors interact with government employees or officials in ways that seem to invite dramatic responses. “They become unnecessarily contentious,” he said. “I’ve spoken to some individuals who have intentions that are to educate and inform. But with some, you get a sense that their intent is to create some kind of conflict because that will be most attention when viewed on YouTube.”
Outside of Manchon’s pending legal action, there’s no record of any First Amendment auditor being involved in a legal action against a New Hampshire government entity. Warner Selectman Smith said that auditors regularly threaten to sue municipalities, but they rarely do.
Some of that could be the result of increased training for government employees in recent years, especially among police agencies.
“We deal with aggressive people frequently, not only in big cities but in small towns,” said Patrick Sullivan, executive director of the New Hampshire Chiefs of Police. “They can get aggressive, but we have to respond appropriately.”
According to the New Hampshire Municipal Association that means staying calm and treating the auditor with respect. Employees can offer help and briefly answer questions, but they’re advised to not interfere with an auditor if they’re not creating a disturbance.
“People are entitled to record a police encounter in a public place,” said John V. Scippa of the NH Police Academy. “But what they cannot do is get in the way, interject themselves, or hinder a police officer in an official activity. That’s where it becomes more than a First Amendment Audit. Now they’re starting to obstruct the ability of that police officer to do his or her job.”
Still, there are people who might find harsh, vulgar and boorish language that some auditors use to be triggering. Silverman said that that it could even be illegal although only in the strictest sense of that word. There is a New Hampshire law dating back to 1942 against using language that could be considered “incitement,” or “fighting words” enacted after someone was called a “damn fascist” and a “damn racketeer.”
“But in the years since, that case has really come into question,” Silverman explained. “The consensus among most First Amendment scholars is that that (court) decision is not good law. Generally, we’ve decided that the government shouldn’t be in the position of defining what use of language is offensive.”