To the extent that the Ordinance grants discretion, it vests any person- including government employees and even Sheets-with the power to withhold consent to record them inside City Hall.Īll the same, says Sheets, because government employees are among people who can withhold consent, they have unbridled discretion. Instead, it simply penalizes unconsented recording that becomes a disruption of City business after the person refuses to stop. Third, the Ordinance is not a licensing or permitting scheme that grants City officials with discretion to allow or disallow speech. Thus, Sheets failed to show the Ordinance grants unbridled discretion sufficient to justify a preliminary injunction….
This limitation on consent ensures no person (City employee or otherwise) can completely prevent First Amendment activity.
Similarly, if Sheets had consent to interview someone, a City official could not prevent him from doing so. Under the Ordinance, no City employee could prevent him from doing that. Here for instance, Sheets recorded the lobby of City Hall before encountering anyone. So while the Ordinance does not delineate standards to guide withholding consent, any vested discretion is not unbridled or unfettered rather, it is personal and limited to each individual. Nor can a person prevent recording of City Hall's public areas. Put another way, nobody can withhold consent to record anyone else. Under the Ordinance, people can only withhold their own consent for recording of themselves. Second, any discretion individuals have to prevent recording is necessarily limited. This ameliorates the risk of unconstitutional viewpoint discrimination. The court disagreed, holding the CSOs "did not have or exercise unfettered discretion" because they needed "to ensure the safety and privacy of both the judges and staff and make sure they were not photographed or filmed without their consent." As described below, the Ordinance allows far more recording and far less discretion than Gileno. Gileno argued the CSOs had unfettered discretion under the policy to prevent recording of public meetings. The courthouse had a policy allowing cell phones and computers but prohibiting their use for taking pictures and recording sound or video without approval. The purpose of City Hall is to conduct "legitimate public business." And the Ordinance restricts recording within City Hall without the consent of those being recorded. "The Government, like any private landowner, may preserve the property under its control for the use to which it is lawfully dedicated." Likewise, a government "workplace, like any place of employment, exists to accomplish the business of the employer." "It follows that the Government has the right to exercise control over access to the workplace in order to avoid interruptions to the performance of the duties of its employees."īased on the preliminary injunction record, the Ordinance places reasonable restrictions on recording at City Hall given its purpose and context. In Sheets, the court concluded that the same principle applies to videorecording, and decided that a ban on such videorecording of people in City Hall without those people's consent was indeed reasonable: Cumming) involving videorecording on public streets, that, "The First Amendment protects the right to gather information about what public officials do on public property, and specifically, a right to record matters of public interest." But public streets are "traditional public fora," in which First Amendment rights are generally quite broad the insides of government buildings are generally "nonpublic fora," where speech can be restricted so long as the restriction is reasonable and viewpoint-neutral. The Eleventh Circuit had held, in a case ( Smith v.
So holds a decision Friday by Judge Sheri Polster Chappell (M.D.
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