By The Vanguard Staff
PHOENIX, AZ – A new law in Arizona that would make it a crime for the public to record law enforcement within eight feet of a police action is unconstitutional, according to a lawsuit filed here by the American Civil Liberties Union (ACLU) of Arizona and joined by 10 news media organizations.
The lawsuit charges the newly signed law violates the First Amendment, suppressing the right to free speech and limiting accountability and protests of government actions.
The law states that people cannot record the law enforcement activity and can be arrested “if they know or reasonably should know that the activity is occurring.”
“Law enforcement activity” includes police questioning someone, or arresting someone, according to the law, which goes into effect next month.
In a statement, the ACLU said, “recording police encounters and other law enforcement activity in public is one of the few ways that members of a community and journalists can hold police accountable for misconduct.”
“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, the legal director of the ACLU of Arizona. “This law is not only unconstitutional, it is bad public policy.”
The ACLU suggested the law gives too much power to officers, who might want their action not recorded, and, at large protests, recording would be difficult because police lines are often within the eight-foot limit.
The ACLU noted video recordings of police interactions with civilians have played significant roles in cases of alleged police brutality in recent years. Bystander footage went viral on social media and was used in court following the police killing of George Floyd in 2020, and former Minneapolis police officer Derek Chauvin was convicted of murder following the trial.
Arizona state Rep. John Kavanagh (R), who sponsored the legislation, said in a March op-ed that having the law as a “buffer” is necessary, as police may not know if someone approaching is an innocent bystander or an accomplice to someone they are arresting, according to news reports.
“We have a right to hold police officers accountable by recording their activities in public,” said Esha Bhandari, deputy director of the ACLU Speech, Privacy, and Technology Project.
Bhandari added, “Arizona’s law will prevent people from engaging in recording that doesn’t interfere with police activity, and it will suppress the reporting and advocacy that results from video evidence of police misconduct. The First Amendment does not permit that outcome.”
“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 National Press Photographers association (NPPA) general counsel Mickey H. Osterreicher. “We hope the court will agree and strike down this law as unconstitutional.”
Every federal circuit court to consider the matter has recognized the right to record police engaged in official duties in public, including the Ninth Circuit, which covers Arizona.
The plaintiffs in this case include the ACLU of Arizona and the following media organizations: Phoenix Newspapers, Inc.; Gray Television; Scripps Media; KPNX (12 News); Fox Television Stations; NBCUniversal Media (Telemundo Arizona/KTAZ); Arizona Broadcasters Association; States Newsroom (AZ Mirror); Arizona Newspapers Association; and the National Press Photographers Association.
This case was filed in the U.S. District Court for the District of Arizona.
