By Mark Payne

Federal and State law have long-recognized that the public does not have unfettered access to public buildings. The U.S. Supreme Court has noted that “it is settled law that the First Amendment does not guarantee access to property simply because it is owned or controlled by the government.” Hemmati v. United States, 564 A.2d 739 (1989); see also USPS v. Greenburgh Civic Associations 453 U.S. 114 (1981). “The State, no less than a private owner of property, has power to preserve the property under its control for use to which it is lawfully dedicated.” Adderley v. Florida, 385 U.S. 39, 47, 17 L.Ed. 2d 149 (1966); see also Cox v. State of La., 379 U.S. 536, 554, 85 S. Ct. 453, 464, 13 L.Ed. 2d 471 (1965).

These long-standing precepts are being tested and challenged by a group of individuals, including so-called “First Amendment Auditors.” These are a loosely organized group of individuals whose agenda consists of variations on the following theme: the First Amendment authorizes any member of the public to enter into any government space and go anywhere within that space. Many of these individuals film all interactions with public officials, employees, and security and take actions that, in some instances, are clearly intended to provoke a negative response. These interactions are usually live-streamed or posted on social media after editing. As they travel from jurisdiction to jurisdiction, it is likely that your municipality or county will be visited by these individuals.

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