By Erin Jenkins.
In July 2022, Arizona Governor Doug Ducey ratified a law that makes it illegal for people to videotape within eight feet of law enforcement activity. Expected to go into effect in September 2022, critics argue the law limits transparency, decreases accountability, and restricts the public’s First Amendment right to free speech. News outlets and the American Civil Liberties Union (ACLU) have recently filed a lawsuit in the U.S. District Court of Arizona challenging the constitutionality of the law.
H.B. 2319: THE LETTER OF THE LAW
The Arizona bill, known as H.B. 2319, was signed into law by Governor Doug Ducey in July of this year. The exact provisions of the law prohibit recording law enforcement activity from within eight feet of where the law enforcement activity is occurring. The restriction does not apply to a person who is the subject of the law enforcement activity; that person retains the right to film their experience so long as they are not “interfering with lawful police actions.” Other exceptions are carved out for traffic stops and police activity that occurs on private property, but only to the extent that they do not interfere with lawful police actions.
The law defines “law enforcement activity” to include questioning a suspicious person, conducting an arrest, issuing a summons, handling an emotionally disturbed person who is exhibiting abnormal behaviors, or otherwise enforcing the law.
Violation of the law constitutes a misdemeanor and is punishable by up to 30 days of jail time and fines of up to $500. The law is set to go into effect later this month.
Supporters of H.B. 2319 present a clear argument: no bystander really needs to be that close to police activity. The risk to bystanders who are standing less than eight feet away from potentially dangerous police activity substantially outweighs the benefit of filming from closer range. Police operating in highly tense, potentially dangerous situations may make tragic errors when bystanders stand too close. This puts bystanders in a position to get caught in the crossfire if a situation were to become physically dangerous.
Also, having distractions so close by can make it harder for officers to focus on the law enforcement task at hand. Distractions can lead to a suspect escaping police custody or ditching critical evidence without the police noticing.
An opinion article written by Rep. John Kavanaugh, the bill’s sponsor and a former police officer, reminds the public that the law does not prohibit all filming of police activity; it just prohibits filming within eight feet. Kavanaugh modeled the eight-foot provision off the U.S. Supreme Court’s ruling in Hill v. Colorado. In that case, the Court upheld a law restricting people from coming within eight feet of someone outside of a health care facility for the purpose of getting them to sign a petition, take a pamphlet, or otherwise engage in oral conversation. Following the Court’s logic in Hill, Kavanaugh argues the eight-foot provision is sufficiently limited to balance the compelling interests of safety and effective police work with free speech concerns.
Critics of the law argue that prohibiting the filming of law enforcement activities decreases transparency and stifles accountability. This is especially concerning in Arizona, considering that just one year ago the Department of Justice launched an investigation into allegations of systemic police brutality in Phoenix.
Police reform has been at the forefront of public discourse for several years. Restricting the public’s ability to hold police accountable through video evidence may embolden police to abuse their power without repercussions.
Recent years have proved that the ability to film police during their interactions with the public is critical in exposing brutal, often discriminatory police behavior. Consider public examples like the killings of George Floyd and Eric Garner. Without video footage documenting those instances of police brutality, it would have been the officers’ word against that of witnesses. And, given the preference by certain jurors towards believing police testimony over that of witnesses or victims, dangerous offenders of police brutality would likely escape consequences where there is no video evidence to refute the officer’s account of the facts. Independent footage allows for unbiased evidence that can be used to validate the claims of witnesses, victims, and police officers alike.
Additionally, critics present a First Amendment argument in opposition to the law. While the Supreme Court has not yet ruled on whether recording police is considered a constitutionally protected exercise of speech, the Ninth Circuit considers it so, as do several other federal appeals courts.
Other criticisms focus on practicality. What happens if an officer walks toward someone while they’re filming eight feet away? Are they required to stop filming or back up? What if police and the filmer disagree over what amount of space constitutes eight feet? What happens in a tightly crowded space where a distance of eight feet is not possible, like at a protest? These questions make the law difficult to enforce as written and could allow police too much discretion in deciding who has violated the law.
In August, the ACLU in conjunction with several Arizona news agencies filed a lawsuit in U.S. District Court against Arizona Attorney General Mark Brnovich, Maricopa County Attorney Rachel Mitchell, and Maricopa County Sheriff Paul Penzone. The lawsuit alleges that H.B. 2319 is unconstitutional as written and calls for the Court to prevent it from going into effect. The suit states, “By allowing police officers to arrest and punish people for simply recording video of their actions, the law creates an unprecedented and facially unconstitutional content-based restriction on speech about an important governmental function.”
Attorney General Brnovich has publicly stated that he will not fight the lawsuit. But that doesn’t mean he thinks the law is unconstitutional. Rather, he thinks the plaintiffs have not established that he should be named as a defendant in the suit. Brnovich has called on the state legislature to defend the case themselves.
Considering that the Ninth Circuit regards the filming of police as constitutionally protected speech, it seems likely that the District Court will strike down the law as unconstitutional. Even legislative counsel reportedly warned Kavanaugh during the bill’s creation that they thought the law would likely be ruled unconstitutional if challenged.
According to New York University’s First Amendment Watch, 60% of the U.S. population resides in a jurisdiction whose federal appellate court recognizes the First Amendment right to film police who are performing their duties in public. However, the U.S. Supreme Court has not yet ruled on whether they consider filming of police to be protected under the First Amendment. If any Supreme Court were to uphold the Arizona law, the current conservative makeup would seem a likely candidate.
U.S. District Court Judge John Tuchi is expected to hear oral arguments in the case later this month.