Arizona Limits Recording of Police Activity; ACLU Sues

Arizona Limits Recording of Police Activity; ACLU Sues

On July 6, 2022, Arizona enacted a law that criminalizes the video recording of police within eight feet of law enforcement activity. The law, which goes into effect in September, includes exceptions for people recording from private property, as well as for subjects of police contacts or passengers in a vehicle during traffic stops, who may record the police if the recording does not interfere with police actions.[1] Those who violate the law face up to 30 days in jail, $500 in fines, and a year probation.[2]

Supporters of the bill argue that it will create a buffer around police activity to protect bystanders from approaching too closely to potentially dangerous situations. They further maintain that restricting the recording of police activity to beyond eight feet away does not substantially limit the ability of the public to record police officers, especially with the ubiquity of high-quality cell phone cameras.[3]

Media rights groups have objected to the law, expressing concern that the eight-foot distance rule is arbitrary and unworkable in the dynamic interactions between law enforcement activity and the public.[4] The American Civil Liberties Union and several news organizations are challenging the law in the U.S. District Court of Arizona, arguing that the law infringes on the First Amendment right of the press to engage in newsgathering activities and of all people to record police activities.[5]

In their filing to the District Court, they contend that the law will lead to constraints on recording newsworthy matters of public concern regarding the police. They also argue that the law is unnecessary, pointing to existing Arizona laws which make illegal the obstruction or impairment of police officers in the course of their duty.[6]  

The U.S. Supreme Court has held that the creation and dissemination of information, and news gathering in particular, are protected under the First Amendment rights to freedom of speech and freedom of the press.[7] A number of federal Circuit Courts have specifically recognized the right to record police officers who are conducting their official duties.[8] These courts rely on the principle that gathering information about public officials, including law enforcement officials, “serves a cardinal First Amendment interest in protecting and promoting the free discussion of governmental affairs.”[9] The Ninth Circuit, whose jurisdiction includes Arizona, is among the federal courts which have held that the First Amendment protection for the right to record matters of public interest extends to the right to record law enforcement.[10]

The right to record police is not absolute and is subject to restrictions on time, place, and manner. Some restrictions on filming police activity can be justified to protect public safety, though the restrictions must be content-neutral and narrowly-tailored to protect public safety.[11] For example, bystanders may not cross a police line in order to get into a better position to film the police. Likewise, state laws prohibit the purposeful obstruction or impairment of police activity.[12]  At the same time, the bar for limiting interaction with the police is high, as the First Amendment requires police officers to exercise a higher degree of restraint than the average citizen might in the face of verbal criticism.[13]

The Arizona law is aimed at protecting public safety and ensuring that the work of the police is free from interference by bystanders.[14] Defenders of the law may also point to precedent in those Circuits which have not recognized the right to record the police in public. In one Third Circuit decision, the court noted that previous cases in that jurisdiction upholding the right to free expression and to access information did not clearly support the right to record the police during a traffic stop, which in an “inherently dangerous” situation.[15]

Given the weightiness of the constitutional protections at stake, courts will be wary of vagueness in the law and pretextual reasons for liming rights to record police activity in public. The law doesn’t even require a showing of real need or danger to police or to bystanders. The ACLU contends that the open-ended definition of “law-enforcement activity” in the law, as well as the broad power given to the police to determine whether recording “interferes” with law enforcement activity renders the protections of the law to be “toothless.”[16]

It is also noteworthy that the Senate Rules Committee of the Arizona legislature was informed by the Arizona State Rules attorney that the recording of law enforcement has been recognized as a First Amendment right and that there are “reasons to be concerned” that a court would strike down the law as unconstitutional.[17]

Ultimately, given that multiple federal circuits, including the Ninth Circuit, have explicitly recognized the right to record police activity in public, backers of the Arizona law bear the burden of demonstrating pressing need for the new restrictions. This is made more difficult by the fact that the law in question does not specify particular dangerous circumstances under which recording would be illegal, but rather generally prohibits recording police conduct from up close. This lack of narrow tailoring may weigh heavily against the Constitutionality of the law, in the face of substantial First Amendment interests in protecting the transparency of law enforcement conduct in public spaces.