A coalition of news organizations, including the Arizona Mirror, and civil liberties advocates filed a federal lawsuit on Tuesday to block a new Arizona law that would make it a crime to film police officers in certain situations , arguing that it violates the First Amendment.
“If effective, HB2319 would have a dramatic chilling effect on Arizonans who wish to exercise their First Amendment right to videotape law enforcement officials performing their duties in public,” the attorneys for the Mirror and other plaintiffs in a motion asking a federal judge to prevent enforcement, known as a preliminary injunction.
The new law is due to come into effect on September 24 and would ban the videotaping of police officers within eight feet of where “law enforcement activity is taking place”. If a person doesn’t stop after being told to, they could face a class 3 misdemeanor and up to 30 days in jail.
“The States Newsroom and the Arizona Mirror are dedicated to informing people about the decisions and activities of public officials,” said Andrea Verykoukis, deputy director of the States Newsroom, which publishes the Mirror. “There is nothing more essential to this task than every Arizonan’s First Amendment right to collect and share information about their elected officials and law enforcement officers paid with public money.
“We eagerly await a decision that will stop this chilling and unconstitutional law from coming into effect.”
The plaintiffs in the legal challenge are the Mirror and States Newsroom; the Arizona Association of Broadcasters; the Arizona Newspaper Association; Fox 10 parent company Phoenix; the parent company of KTVK 3TV, KPHO CBS 5 News and KOLD News 13; KPNX 12 News; NBCUniversal, owner of Telemundo Arizona; the National Association of Press Photographers; Phoenix Newspapers Inc., owner of 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 a clear violation of the First Amendment rights of all Arizonans, including journalists, the lawsuit states. The legislative sponsor of the new law, Republican Fountain Hills State Rep. John Kavanagh, knew there were constitutional issues, as did legislative attorneys, who warned lawmakers that the restrictions were going to against previous court decisions.
Courts have long ruled that the First Amendment not only protects the posting of videos, but also the act of recording them — especially videos of public officials in public places.
In striking down an Idaho law that prohibited video recordings at farm facilities, the Ninth Circuit Court of Appeals rejected the argument that such videos were not protected by the First Amendment, ruling that it would amount ” to say that even if a book is protected by the First Amendment, the process of writing the book is not.
And the U.S. Supreme Court “has always recognized the right to gather information, and recording police and other government officials is information gathering,” the lawyers for the news organizations and the ACLU noted. in their documents. In a 1972 case, the High Court ruled that “freedom of the press could be eviscerated” without First Amendment protections for seeking information.
Arizona’s new law also specifically targets video recordings, while ignoring other types of speech, according to the lawsuit. While intended to prevent interference with officers, the law does nothing to prohibit anyone from coming within eight feet of an officer for any other reason — even “while holding a phone to others.” purposes, such as catching Pokemon or videotaping non-law enforcement related activity, or being within eight feet of an officer taking a still photo, or writing notes about what the officer is doing, or even make an audio recording of an encounter with the police.
The lawsuit points to existing state and local laws that prohibit interfering with police officers that may already be enforced. And those laws are clear, unlike HB2319, according to the lawsuit.
“There is no evidence to show that a person holding a cell phone that is recording is interference with law enforcement activity, whereas a person walking down the same sidewalk holding the same phone but texting texting or taking pictures with is not,” the plaintiffs argued. “This irrational distinction… highlights the true purpose of the law: to prevent recording, not interference or distraction. “
The way the law is written, it “effectively creates moving bubbles around every officer” in which it could be a crime to record video. And it gives every cop in Arizona the power to “create the crime” just by walking up to someone filming it.
“Where a group of police officers making an arrest do not wish to be recorded, an officer from that group may order the recording to stop, move towards the person recording and, as soon as that officer approaches unless eight feet from the person, immediately find them in violation of the law and subject to arrest – even if it was the officer’s approach that triggered the alleged violation,” media lawyers argued and of the ACLU.
The law requires that a warning to stop recording be issued before filming can be considered a crime, but it’s unclear how that would work, as there’s no guidance on what qualifies as a crime. “previously” receive a warning.
“Is it five minutes?” One o’clock? One day? Should the warning come from an agent involved in the recorded activity? What if another officer arrives after the ‘no recording’ order has been given and tells the videographer to go ahead and start recording again? argued the lawyers.
About this story
The story was originally published by Arizona Mirror, part of States Newsroom, along with Iowa Capital Dispatch. States Newsroom is a network of news outlets supported by grants and a coalition of donors as a 501c(3) public charity. Arizona Mirror maintains editorial independence. Contact editor Jim Small with any questions: [email protected]. Follow Arizona Mirror on Facebook and Twitter.