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Arizona slammed over 8-foot rule for recording police actions

News organizations say the Arizona law violates First Amendment rights to record and report on police and government activities.

(CN) — The American Civil Liberties Union of Arizona filed a federal lawsuit Tuesday claiming a new Arizona law, which makes it a crime to record police officers without permission, will stifle First Amendment rights. 

The National Press Photographers Association (NPPA) joined the Arizona Broadcasters Association and eight other journalism organizations, represented by the ACLU and Ballard Spahr LLP, in the complaint, filed in the District of Arizona. The lawsuit challenges House Bill 2319, which makes it illegal to record within eight feet of law enforcement activity without permission from a police officer.

“The constitutional right to record police engaged in official duties is one of the public’s most effective accountability tools against police wrongdoing and is one of the few ways community members and the media can hold police accountable,” the organizations said in a statement. “Arizona’s HB 2319 would directly suppress free speech rights, while also limiting public accountability and effective monitoring of government actions."

The groups also argue that the law gives too much power to officers to stop anyone recording them and makes it nearly impossible to record police in large protests. The NPPA wrote letters alongside more than twenty press freedom groups and news organizations warning Arizona legislators and the governor that the law could be unconstitutional.

“We fear that, rather than acting as a shield to ensure ‘officer safety,’ this law will serve as a sword to abridge the ‘clearly established’ First Amendment right to video record police officers performing their official duties in public,” said Mickey H. Osterreicher, NPPA counsel.

The ACLU also said in a statement the ability to record without permission must be protected due to many instances where law enforcement use brutal violence against people — particularly in communities of color — which can turn lethal.

“At a time when the public is demanding police accountability, Arizona wants to criminalize the public’s most effective tool for shining a light on police violence,” said Jared Keenan, legal director at ACLU of Arizona.

“Arizona’s law will prevent people from engaging in legitimate recording that doesn’t interfere with police activity, and it will suppress the reporting and advocacy that results from video evidence of police misconduct,” said Esha Bhandari, deputy director of the ACLU’s Speech, Privacy, and Technology Project. “The First Amendment does not permit that outcome.”

Every federal circuit court that has taken up cases over the right to record — seven out of 13 circuits — has recognized the right to record police engaged in official public actions — including the Ninth Circuit, of which Arizona is a part.

Arizona Representative John Kavanagh, a Republican from Fountain Hills who wrote the law, said in an interview he is glad his bill drew a lawsuit, as he thinks this is an important constitutional discussion.

"I hope this goes to the Supreme Court," he said. 

A retired police officer, Kavanagh said he wrote HB 2319 out of concern that people who disagree with police will follow them too closely while recording their actions. “Eight feet is pretty reasonable,” he said, given other cases like the Rodney King case in Los Angeles involved footage recorded from farther away. 

“Don’t tell me today’s uber-sophisticated cellphone camera can't pick up everything from eight feet or more,” Kavanagh said, adding the law does not stop people from recording their own encounter with an officer or recording from a passing vehicle. 

He said while it is already illegal to obstruct an officer, he hopes this law will prevent recording which is not obstructive but can be intrusive. 

“When you’re recording, you’re a distraction, which can have tragic results if the officer isn’t looking,” Kavanagh said. 

But David Loy, legal director at First Amendment Coalition, called the law “a direct threat to reporting and news gathering, and anyone who is exercising their first amendment right to report police conduct in public.”

“There are plenty of laws on the books that already address the issue of actually obstructing police, without having to single out protected speech specifically,” Loy said, adding he believes enforcing the law will be “highly subjective and vague” because people will not know if they are eight feet from police in fast-paced situations.

“It has a chilling effect and will inevitably force people to curtail their protected right to film the police, because they will never know if they are in violation or not,” he said. 

“There’s a troubling trend nationwide in trying to crack down on protected speech. Nothing is more foundational to a constitutional democracy than the right to protest, dissent and hold government accountable, and specifically to record government conduct.”

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