Got back a reply from Trey Brown this morning and my reply included.
I suppose going back and forth on this, especially when he cites no law, is not productive. I mean, anyone can just up and say “Hey, I’m going to put a sign in the hallway even if it has no legal backing” but that doesn’t make it required to be followed. In fact, in this message to me, Brown says “All the signs do is, hopefully assuming people follow them”. What? Assuming people follow a paper sign stuck on the wall that has no law cited? That pretty well admits that there isn’t any reason for them if you just “hope” that the signs are followed. I go further, what is the point of putting up signs at all then?
Brown says “Any public agency has a common law right to privacy in offices where sensitive information is held”. What is that law and citation? That idea, which does not seem to be justified, backs up directly against the one-party consent law and freedom of speech in the constitution. I’ve already talked about some of those factors on a previous post. Here’s what I think, in particular for elected official offices and this goes whether it is someone wanting to record (in a one person consent state) or just walking in and having visual access to what is on someone’s desk. If there some reason why the officials are not responsible and adult enough to put away papers that are *sensitive*? This part, again, has NOTHING TO DO with whether one wanted to record inside a commissioner office, but whether the papers are out of view, period. It would be against the law for a citizen to walk into an office and rifle through the desk or the filing cabinet, but that is not what is being described here.
Kind of amazing to mull over what he *is* saying. Sounds like he is saying that sensitive materials may be in public offices in full view of anyone that comes in. Rather than, say, close the office door and then, when someone knocks to come in, the office person hurriedly puts stuff away that a visitor should not see without at least some redaction via an open records request. And, how sloppy would THAT be to have a whole bunch of *sensitive* information in full view of anyone that comes into an office.
Going further, is Brown trying to say that the offices in this hallway are not public offices but private? For years, I have walked down the hall to speak to commissioners, the doors are either open with a commish sitting in it or they are closed (maybe a private meeting OR they are just not there). I have never been told that I had to have an appointment, although there is an admin in the office at the front. I have never seen a sign in the hallway that says these offices of elected officials are private. And, really, they CANNOT BE. These are elected officials in a public building in offices open to the public. (I also think that includes the other elected offices, rather than hired employees) Further, I called to ask Evalina, the admin for the commissioners, if anyone needed to make an appointment to see a commissioner or if she kept track of schedules or acted as a sort of gatekeeper. Nope. And she would not follow someone down the hall to find out what business they had with a publicly elected commissioner.
Government employees are ALSO paid by the taxpayer. Do they also keep sensitive information out in the open on their desks? For example, Haley in HR usually has her door open, as does the juvenile probation(?) person. If you walk back after getting permission to enter the area Brown sits in where you have to be buzzed in, the ONLY door I have seen closed back there is the one that Cindy Gray had previously, which has not reverted back to being an office supply and printer room. Is Brown trying to say that he keeps sensitive documents out in the open in his office that anyone coming in could see instead of putting them away when someone invited in? It’s pretty ridiculous.
And, insultingly, Brown says those signs have nothing to do with me. Oh, yes, they do. I am a citizen and there is nothing on that sign that says it DOES not include every citizen. Otherwise, who the heck is it intended for, this random piece of paper? I’m putting this part of Texas law explicitly here; I quote this regularly but let me repeat
Under the fundamental philosophy of the American constitutional form of government that adheres to the principle that government is the servant and not the master of the people, it is the policy of this state that each person is entitled, unless otherwise expressly provided by law, at all times to complete information about the affairs of government and the official acts of public officials and employees. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments that they have created
Then the next sentence talks about open records but note the principle of open government, PERIOD. Again, that section says that each person is entitled to complete information about the affairs of government, UNLESS EXPRESSLY PROVIDED BY LAW. So, again, Brown does NOT cite a specific law that shows that a citizen cannot freely walk in a public building, down a public hall into an open office occupied by public servants, and IF THEY WANT, record in audio or video in that office or hallway a public servant. WHAT LAW IS BEING EXPRESSLY VIOLATED? If he cannot cite it, then it is not anything that he can arbitrarily ask to be enforced, especially since Americans have freedom of speech AND Texas is a one-party consent state. Also note that THIS law says “Each person”, not “these signs have nothing to do with you”
Brown blithely races past the First Amendment.. but what he is doing with the signs is trying to control or suppress speech.
In the landmark 2010 Citizens United v. Federal Election Commission case, the Supreme Court recognized that “[l]aws enacted to control or suppress speech may operate at different points in the speech process.” If a law restricts filming itself, one could argue that such a law “restricts a medium of expression—the use of a common instrument of communication—and thus an integral step in the speech process.” In other words, by prohibiting someone from filming, the government is arguably prohibiting future speech (sharing or posting the video) by suppressing it at the first point in the speech process (the act of filming itself). Following this line of reasoning, several U.S. Circuit Courts of Appeals have found that the First Amendment protects the act of video recording itself, not just disseminating the recording. The Seventh Circuit Court of Appeals, for example, has held that “[t]he act of making an audio or audiovisual recording is necessarily included within the First Amendment’s guarantee of speech and press rights as a corollary of the right to disseminate the resulting recording.” Am. C.L. Union of Illinois v. Alvarez, 679 F.3d 583, 600 (7th Cir. 2012).
and
Right to record government officials in public
The First Amendment generally protects filming and audio recording of government officials engaged in their duties in a public place, subject to reasonable time, place, and manner restrictions. For example, members of the press and public may record a police officer during a protest or traffic stop, so long as the person does not interfere with the officer’s ability to perform his duties.
Although the Supreme Court has not addressed the issue, six federal appellate courts have explicitly recognized this constitutional right to record under the First Amendment, reflecting a growing consensus on the matter. See Askins v. Dep’t of Homeland Sec., 899 F.3d 1035, 1044 (9th Cir. 2018); Fields v. City of Philadelphia, 862 F.3d 353, 356 (3d Cir. 2017); Turner v. Lieutenant Driver, 848 F.3d 678, 689 (5th Cir. 2017); Am. C. L. Union of Ill. v. Alvarez, 679 F.3d 583, 600 (7th Cir. 2012); Glik v. Cunniffe, 655 F.3d 78, 87 (1st Cir. 2011); Smith v. City of Cumming, 212 F.3d 1332 (11th Cir. 2000).
Most states’ recording laws only restrict recording in public places when participants have a reasonable expectation of privacy, and therefore state recording laws generally do not conflict with this First Amendment right. Laws that do not have such a limitation, however, may violate the First Amendment. See, e.g., Project Veritas Action Fund v. Rollins, 982 F.3d 813, 817, 836 (1st Cir. 2020) (finding that the Massachusetts recording law violates the First Amendment as to its prohibition of “secret, nonconsensual audio recording of police officers discharging their official duties in public spaces”).
In addition to protection under the First Amendment, some states, including Colorado and New York, have recently adopted statutes recognizing the right to record. State courts may also recognize the right under their state constitution, such as in Hawaii.
So, again, it appears that these signs are not legal and don’t have to be obeyed, but I believe them even being on the wall in the first place is an affront to citizens.
