Protesters in Phoenix clash with Phoenix police officers in riot gear on June 23, 2020. Under a 2022 law criminalizing taking video of police within eight feet of them, the person filming this video could have faced up to 30 days in jail. Screenshot via YouTube/Arizona Mirror
A coalition of news organizations, including the Arizona Mirror, and civil libertarians filed a federal lawsuit Tuesday to block a new law that would make it a crime to take video of police officers in some situations, arguing that it violates the First Amendment.
“If it goes into effect, HB2319 would have a dramatic chilling effect on Arizonans who wish to exercise their First Amendment right to record video of law enforcement officials performing their duties in public,” attorneys for the Mirror and other plaintiffs wrote in a motion asking a federal judge to stop the law from being enforced, known as a preliminary injunction.
The new law is scheduled to go into effect on Sept. 24, and would outlaw video recording of police officers within eight feet of where “law enforcement activity” is taking place. If a person does not stop after being told to, they face a class 3 misdemeanor and up to 30 days in jail.
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“States Newsroom and the Arizona Mirror are dedicated to informing people about the decisions and activities of public officials,” said Andrea Verykoukis, the deputy director of States Newsroom, which publishes the Mirror. “There is nothing more essential to this task than the First Amendment right of every Arizonan to gather and share information about their elected representatives and law enforcement officers paid with public money.
“We look forward to a ruling that will prevent this chilling and unconstitutional law from taking effect.”
The plaintiffs in the legal challenge are the Mirror and States Newsroom; the Arizona Broadcasters Association; the Arizona Newspapers Association; the parent company of Fox 10 Phoenix; the parent company of KTVK 3TV, KPHO CBS 5 News and KOLD News 13; KPNX 12 News; NBCUniversal, which owns Telemundo Arizona; the National Press Photographers Association; Phoenix Newspapers Inc., which owns The Arizona Republic; Scripps Media, which owns ABC15 in Phoenix and KGUN9 in Tucson; and the ACLU of Arizona.
The law, which was created by House Bill 2319 earlier this year, is an obvious violation of the First Amendment rights of all Arizonans, including journalists, the lawsuit states. The new law’s legislative sponsor, Fountain Hills Republican state Rep. John Kavanagh, knew there were constitutional problems, as did legislative attorneys, who warned lawmakers that the restrictions flew in the face of previous court rulings.
Courts have long ruled that the First Amendment protects not only the publication of videos, but also the act of recording them — particularly videos of public officers in public places.
In striking down an Idaho law that barred video recordings in agricultural facilities, the Ninth Circuit Court of Appeals rejected the argument that such videos weren’t protected by the First Amendment, ruling that would be “akin to saying that even though a book is protected by the First Amendment, the process of writing the book is not.”
And the U.S. Supreme Court “has consistently recognized a right to gather news, and recording police and other government officials is newsgathering,” attorneys for the news organizations and the ACLU noted in their filings. In a 1972 case, the high court ruled that “freedom of the press could be eviscerated” without First Amendment protections for seeking out the news.
The new Arizona law also targets video recordings specifically, while ignoring other types of speech, the lawsuit claims. While it purports to prevent interference with officers, the law does nothing to forbid anyone from approaching within eight feet of an officer for any other reason — even “while holding up a phone for some other purpose, such as catching a Pokemon, or video recording non-law enforcement activity, or being within eight feet of an officer taking a still photo, or writing notes about what the officer is doing, or even making an audio recording of a police encounter.”
The lawsuit points to existing state and local laws that prohibit interfering with police officers that can already be enforced. And those laws are clear, unlike HB2319, the lawsuit claims.
“There is no evidence to show that a person holding a cell phone that happens to be recording is an interference with law enforcement activity, while a person walking by on the same sidewalk holding the same phone but texting or taking pictures with it is not,” the plaintiffs argued. “This irrational distinction … highlights the law’s true purpose: preventing recording, not interference or distraction.”
The way the law is written, it effectively “creates moving bubbles around every officer” within which it might be a crime to record video. And that gives every police officer in Arizona the authority to “create the crime” simply by approaching someone who is filming them.
“Where a group of police officers making an arrest do not want to be recorded, one officer from that group can order a halt to recording, move towards the person recording and, as soon as that officer comes within eight feet of the person, immediately find them in violation of the law and subject to arrest—even though it is the officer’s approach that triggered the alleged violation,” the attorneys for the media and ACLU argued.
The law requires that a warning to stop recording must be issued before filming can be considered a crime, but it’s not at all clear how that would work, as there’s no guidance as to what qualifies as “previously” receiving a warning.
“Is it five minutes? An hour? A day? Does the warning have to be from an officer involved in the activity being recorded? What if another officer arrives after the ‘no recording’ order is given and tells the videographer to go ahead and start recording again?” the attorneys argued.
***UPDATE: This story has been updated to include documents related to the lawsuit.
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