On Nextdoor this morning I saw pictures of a couple of guys in our local Trader Joe’s parking lot. They were taking pictures and videos of people’s cars, license plates, and faces. The ND poster was asking “what the hell?” Folks responded that these are so-called “First Amendment Auditors”, which is a misnomer. That in reality, they are seeking to provoke conflict so that they can tape it and post it on youtube for clicks and views. As in, “Enraged Karen Goes Insane at Trader Joe’s!” Oh, and they start doing this stunt at the most crowded days and times when they know that customers are already testy from stress.
Apparently it’s a gray area, legally speaking, to do this stuff in a parking lot. Inside the Trader Joe’s, it’s private property and these guys can be ousted for this behavior. But a parking lot is roughly speaking a public space and there’s not much TJ’s or law enforcement can do about them.
When I showed it to Mr. brown, he was incensed and claimed that parking lots are private property and there’s nothing preventing TJ’s from giving the youtubers the bum’s rush. I counter that a parking lot is not the same as private property. Which is it?
Our local community center had one of those, and he would show up and insist on access to all rooms so he could record with his phone for ‘first amendment’ reasons. He was also loud and threatening, and they were eventually able to get him barred from the property.
Subsequently, he threatened police and neighbors with a m@ch3te and then barricaded himself in his house. That didn’t end well. [spelling modified because I’m paranoid about searchability]
ETA IANAL but public parking lots have an implied invitation until a person is specifically disinvited. At least, that’s my recollection.
If enough customers go inside the store and bitch the company will do something. They are there to service a customer not entertain an idiot looking for YouTube shorts
For example, somebody secretly filming you inside the bathrooms of a public facility would be quite different from somebody filming in a privately owned public lot.
This isn’t a 4th amendment question (or a 1st, for that matter) because it’s not the government trying to film you, but I believe similar principles apply for citizen recordings of other citizens.
Trader Joe’s can set rules about filming and allowable uses on their space, but the default legal situation and the enforcement would probably come down to state by state variations. They may be able to bar people from their property, for example, but whether the filming and sharing is illegal (which are probably two separate questions) would depend on state laws. I THINK.
I do not see where “expectation of privacy” applies at all. As you note, the government is not doing this and this is not a 4th amendment issue. “Expectation of privacy” is, essentially, a legal term of art with a specific meaning derived through 4th amendment case law in the context you cite.
To me, it seems like a simple question of whether the parking lot is private property, who owns it, and what if any rights Trader Joe’s or other tenants (I am assuming these stores and businesses are renters, not the owners themselves) have. In the simplest case, if it is private property wholly owned or leased by Trader Joe’s and no one else, then I see no reason why Trader Joe’s cannot simply inform the person that they are trespassing, ask them to leave, and then if they don’t comply call law enforcement and have them removed (and possibly arrested) for criminal trespassing.
That would be my understanding. It’s one thing if it’s a municipal parking lot, or street parking, but a parking lot on privately-owned property is still privately-owned property.
It’s not a question of whether TJs can ask the person to leave. They certainly can. It’s a matter of what happens if they DON’T, as in the OP.
Then the expectation of privacy (among other things, like likeness rights) might come into play. The person filming probably isn’t breaking any laws if they’re filming in a parking lot. They might be if they were filming in a bathroom. They might also break other laws if they record audio without consent, or if they distribute their film with people’s faces visible.
None of those would prevent TJs from banning them from the property, but if TJs chooses not to intervene, then what happens… that’s what I understood the question to be. Whether they are able to legally film there is a totally separate question from whether TJs can ban them. TJs can generally ban anyone who isn’t part of a protected class even if they’re not breaking any laws. And they don’t have to ban anyone even if they ARE breaking laws.
(edit: in other words, I’m pretty sure that in most circumstances Mr Brown would be correct and TJs could’ve booted them. unless it was one of those weird situations where sometimes cities partner with developers and maybe the parking lot is leased public property etc., who knows. but generally speaking they should be able to. but that’s a different question than the legality of the filming)
They are if (1) it’s private property and (2) someone with property rights (think owner or lessee) tells them to leave and they don’t. That’s going to be criminal in most or all jurisdictions, I expect.
I don’t think #1 is true. And I think #2 would be a separate trespassing charge, not some illegal filming one.
For #1 it’s very much an expectation of privacy question.
For #2 the issue wouldn’t be that they’re filming, it’s that they’re refusing to leave a property they were banned from. They could still film the parking lot from across the street.
The best way to not let be a problem is don’t give them content to post.
As soon as you engage you can be posted and possibly go viral. To your embarrassment. The filmers want a bit to go viral. They won’t care. And once it’s online, it never goes away. Ever.
Ignore. Walk. Go home. You can cuss them silently.
If I take pictures in a Walmart parking lot, for example, that alone is not breaking a law. However, if a Walmart employee sees me doing it and tells me to stop taking pictures and I refuse, they can tell me to leave their property. If I refuse to leave the property, an LEO can charge me with tresspassing.
To pedantize this. People who are members of a protected class can be banned. The reason for the banning cannot be related to their membership in the protected class. The owner of the parking lot can’t, for example, ban someone because that person is a veteran. They can ban a veteran for putting flyers on windshields, stealing carts, harassing people, etc.
Sometimes the “for no reason” thing comes up. A business can probably ban people for no reason. If 9 out of 10 of the people banned are pregnant women, then the store is going to have a hard time defending that the bans are for no reason, rather than due to the membership in the protected class.
Usually the difficulty with banning people from parking lots is one of who has the right to do the banning. Trader Joe’s may have to talk to the owner of the shopping center to ban people, because Trader Joe’s shares the parking lot with all of the other stores in the shopping center.
What are you talking about? No it’s not. Private property is property that is owned by a non-government entity. Not property that is secret/secluded behind walls.
A homeowner’s front lawn? Private property. If someone is on private property and they refuse to leave it after the property owner or someone with property rights directs them to leave, that’s going to be criminal trespassing.
Just to be very clear, it doesn’t matter if the act of filming by itself is illegal if the issue is simply whether there is a way to stop them from filming in the parking lot specifically. If it’s private property, there is: the owner or lessee tells them to leave, and calls the police if they refuse.
Sorry for the scattered thoughts. Was lazily typing on my phone earlier. Now that I’m back on a computer, let me try to be a little more coherent, lol…
There is generally not a “you cannot film on private property” law. There generally ARE “you cannot be on private property you’re excluded from” laws, i.e., trespassing, as Crafter_Man pointed out.
Filming in and of itself doesn’t constitute trespassing. It’s trespassing if they ask you to leave and you don’t.
And even if you trespass, that still doesn’t make the recording illegal. Even if TJs removes you from the property, they couldn’t then force you to delete the recording (or have you arrested or successfully sue you for it). Those are separate considerations.
Whether the recording in and of itself is illegal depends on other, separate laws, usually with state-by-state variances like whether you are allowed to record audio without mutual consent (two-party/one-party states), whether you’re commercially exploiting a specific person’s likeness without their consent (personality rights), etc. But generally speaking, if you are recording people in a parking lot, you are probably not breaking the law (but TJ’s can still remove you, because they can do that even if you’re not breaking a law).
The reason you are probably not breaking the law, absent the nuances above, is because there is not a reasonable expectation to privacy in a parking lot, even if it is privately owned — and to simplify the argument, let’s assume it is a 100%-owned TJ’s-only parking lot with no other shared tenants or landlords or city partnership or anything; it’s just entirely and wholly owned by TJ’s itself. “Who owns the property” is a part of the “reasonable expectation of privacy” question, but it isn’t the only (or even the most important) part of that question.
The recording doesn’t automatically become illegal just because it occurred on private land. (But you can still be removed from that property, regardless.)
Consider the following scenarios:
The news station reporting on a busy snow day at the private ski resort, or Christmas at the mall, or a fight that broke out at a bar. They can be on the sidewalk, they can be inside the venue itself, it generally doesn’t matter because a reasonable person wouldn’t expect to be private in those scenarios.
Someone recording you having sex, or in the bathroom, without your knowledge and consent: Illegal pretty much everywhere both because you do have a reasonable expectation of privacy under civil privacy laws and because there are specific anti-voyeurism laws under criminal law. Doesn’t matter if you were on private or public property.
A vlogger with a GoPro, a self-driving car, a bored-passerby, etc. filming you doing yardwork on your front lawn: Probably fine. You don’t have a reasonable expectation of privacy even though you were on your own property.
Any of those same people sneaking up to your window and filming you in your kitchen cooking: Probably illegal because it breaks your expectation of privacy (and maybe anti-harassment laws too)
Any of those same people filming you having sex in the kitchen: Even more illegal, see above
Filming inside a Trader Joe’s vs filming in the parking lot: Doesn’t matter, because there isn’t an expectation of privacy in either place. TJ’s can boot you from either place (assuming it’s their parking lot). If you record audio and/or exploit the people’s likenesses like the annoying YouTubers were doing, then maybe in some states it could give rise to a civil suit, if the “victims” cared enough to pursue it. If you refuse to leave, TJ’s can have you charged with trespassing. They cannot make you stop filming if you’re not on their property, just recording it (with “normal” equipment, that is… more gray areas if you’re using some sort of super telephoto lens, a drone, etc., ie special surveillance equipment that can see where normal cameras/eyes can’t).
Yes, exactly. Good clarification.
No, it’s not, what? That filming private property is illegal? It’s not. Even when combined with trespassing, it’s still not the filming that’s illegal: it’s being on private property against the owner’s wishes.
Yes, we’re in complete agreement there. TJ’s can remove them.
Maybe the confusion here is due to this ambiguity in the OP:
There isn’t a gray area here (assuming TJ’s actually does own the parking lot) because there isn’t a reasonable expectation of privacy in either place. You can film in either place. They can remove you from either place, regardless of whether you’re filming. You can keep filming either place as long as you’re not on their property (like from across the street or the next door building).
Assuming they own the parking lot, then yes.
It depends on the parking lot. Some are privately owned. Some are public. Some are weird combinations. I doubt the average TJ’s employee or manager would actually know, or want to get involved with this. Easier to just shrug and say not their problem.
A parking lot isn’t private or public just because it’s a parking lot. But a parking lot will usually not entail a reasonable expectation of privacy, regardless of its ownership, so it will probably not trigger any anti-recording laws in and of itself.
You can be booted off any private property for a non-protected reason, regardless of whether it’s a parking lot.
The person filming probably isn’t breaking any laws if they’re filming in a parking lot.
I said:
They are if (1) it’s private property and (2) someone with property rights (think owner or lessee) tells them to leave and they don’t. That’s going to be criminal in most or all jurisdictions, I expect
You said:
For #1 it’s very much an expectation of privacy question.
That leads me to believe… you don’t think a store parking lot can be private property unless there’s an “expectation of privacy”?
For #2 the issue wouldn’t be that they’re filming, it’s that they’re refusing to leave a property they were banned from. They could still film the parking lot from across the street.
So what? My point is, that as far as the OP goes, the idea that Trader Joe’s is powerless here is probably bunk, unless the parking lot is owned by some third party and Trader Joe’s itself has no property rights over it even as a lessee (which I could see being the case—maybe Third Party owns an entire strip mall, and leases one storefront to TJs, but maintains control over the parking lot itself, in which case maybe TJs is powerless, but not because it isn’t private property, but because TJs has no property rights in the parking lot itself).
Bottom line, it doesn’t take a law against filming to prevent people from filming in a parking lot, it just takes someone with property rights taking steps to enforce said rights against people who are filming on their property.
Edit: The legal is stuff is an altogether separate point, addressing this part of the OP:
Apparently it’s a gray area, legally speaking, to do this stuff in a parking lot.
That’s the part I meant to address; sorry if it made it seem like I was arguing over the trespassing & removal part. TJ’s can absolutely remove them if they have control over the parking lot.
I hope I got this right (someone please correct me if not): In that specific case in California, a privately owned shopping mall was forced (by the state) to allow student activists to exercise their free speech rights within their private property. They were barred from removing the students even though they were inside a private facility (tabling for signatures for a petition)
Apparently this is because the shopping mall has taken on a “public character” similar to a public forum, and thus the state was able to use its police powers to partially curtail the store’s private rights in favor of its citizens’ California-constitutional rights. The state forced the private store to allow the student activists to stay there, against the store’s wishes.
Very very strange (and very surprising to me) ruling. Most other states have not followed suit.
What’s even more fascinating is that this exception was actually attempted on Trader Joe’s in particular in Trader Joe’s Co. v. Progressive Campaigns, Inc. (1999), but there it was found that TJ’s is NOT a public forum (even though a shopping mall was), partially because of its smaller size and also some other factors (like it’s not designed, in furniture and architecture, to be a public hangout space the way a mall is…).
Crazy stuff, but still affirms that TJs probably CAN remove those people if it owns the parking lot.