(WIVB) – A prominent media attorney said police and public officials commonly level harassment or disorderly conduct complaints against critics to control their speech. In fact, the attorney, Joseph Finnerty, said he saw it happen again last week in federal court to local First Amendment advocate Dan Warmus, who was the subject of complaints from officials in the Town of Hamburg.
On July 13, U.S. District Judge Lawrence Vilardo agreed with federal probation officers to prohibit Warmus from engaging in non-criminal violations of harassment or disorderly conduct while he conducts what he calls First Amendment audits of public servants.
Warmus, who is on two years probation for his involvement in the Jan. 6 attack of the U.S. Capitol, calls himself a “First Amendment auditor.” He visits government buildings and police stations across the state with numerous cameras to record interactions with public servants as he tests their obedience to the First Amendment.
Some public officials have thanked Warmus for pointing out policies that may have conflicted with the right to a free press, such as signs prohibiting photographs in public areas of government facilities.
But other government workers find Warmus suspicious and often complain to police or superiors that he records them without permission. Warmus usually tells public servants that he does not need anyone’s permission to record in public, and typically declines to identify himself by his full name, which sometimes ruffles feathers.
In two years, Warmus has grown his YouTube channel “Auditing Erie County” to more than 73,000 subscribers. He has posted more than 300 videos that have been viewed more than 22 million times.
“I’m not out there for clicks and views,” Warmus said during a recent interview with News 4 Investigates. “Some of the stuff these people do really irks me.”
Finnerty, however, sees Warmus as a journalist targeted by government officials who have problems with his audits and videos.
“I am very concerned that this at the very least chills Mr. Warmus’s First Amendment rights and freedoms, and could put him in serious criminal jeopardy simply for reporting news and observing public officials at work,” said Finnerty, who for decades has defended media organizations in dozens of libel cases and helped journalists pry public records from unwilling government officials.
Warmus’s original probation conditions prohibit him from entering any law enforcement building unless for an emergency, after a police department in Pennsylvania complained about one of his audits.
The new conditions added to his probation this month are partly the result of a July 5 complaint by the Town of Hamburg Police Department, who said their non-emergency phone line was “inundated” with “frivolous” calls from across the country, some threatening violence, after Warmus published a video involving the town.
“The nature of most of the messages have the Town of Hamburg Police Department believing that these calls and the narrative Mr. Warmus portrays of their department, places their officers in danger of retaliation by members of the audience of his YouTube channel,” a federal probation officer wrote in the summons for Warmus.
But Warmus said he cannot control what his viewers do. Nevertheless, he posts disclaimers urging viewers not to call in threats to government officials who fail one of his audits.
“My First Amendment rights are definitely on the line here,” Warmus said.
Federal probation officials believe Warmus can successfully complete his probation while also conducting his audits if he refrains from harassing public servants or disrupting their work flow.
“If Mr. Warmus is sincere in his desire to better his communities and keep governments accountable, he can do it in a manner that does not lead to disruption of business and employees living in fear,” a federal probation officer wrote in the summons.
Finnerty, on the other hand, said Warmus’s critics want his conduct and speech to conform to what they expect from him. In addition, unhappy public servants can provoke Warmus to react in a way that some might consider harassment or disruption.
“But we all know, and police have a tough job, and I am not criticizing them from that standpoint. But police, public officials are notoriously thin skinned when it comes to being observed and criticized in the performance of their jobs,” Finnerty said.
Warmus said the court’s decision leaves him in a “gray area” where he is unsure of what he can do or say while auditing in public government facilities.
“I would like to think that I’m not out there being disorderly or harassing people while I’m doing my audit,” Warmus said. “I’d like to peacefully exercise my constitutional rights in a public setting and not interrupt the business, but I really don’t know what the results of this are going to be.”