The Advisory Committee on Judicial Ethics responds to written inquiries from New York state’s approximately 3,600 judges and justices, as well as hundreds of judicial hearing officers, support magistrates, court attorney-referees, and judicial candidates (both judges and non-judges seeking election to judicial office). The committee interprets the Rules Governing Judicial Conduct (22 NYCRR Part 100) and, to the extent applicable, the Code of Judicial Conduct. The committee consists of 27 current and retired judges, and is co-chaired by the Honorable Margaret Walsh, a justice of the supreme court in Albany County, and the Honorable Lillian Wan, an associate justice of the appellate division, second department.

This responds to your inquiry (22-01) asking if it is ethically permissible to offer training and consultation to local city, town, and village governments regarding appropriate responses to so-called “1st and 2nd Amendment audits.”  In general, these “audits” are conducted by individuals who make videos of their encounters (often provoked by them) with public officials.  If the individuals perceive any violations of their constitutional rights, the videos may be posted on social media and provide the basis for a lawsuit.  Also, these “auditors” may attend government body meetings that are open to the public, and claim violation of their First Amendment rights if they are denied an opportunity to speak, all while video recording the proceedings.  The training would not be offered to law enforcement, but only to civilian government employees, and would not be offered within the county in which you preside.

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