The American Civil Liberties Union (ACLU) of Arizona and multiple media organizations have filed a First Amendment lawsuit seeking to overturn a new law in Arizona that makes it a crime to film within eight feet of police.
The law, passed earlier this year, makes it a misdemeanor offense to continue filming police activity from within eight feet of an officer after receiving a verbal warning. The federal lawsuit, filed Tuesday in the U.S. District Court for the District of Arizona, says that law "creates an unprecedented and facially unconstitutional content-based restriction on speech about an important governmental function."
There are exceptions for filming the police in a private residence, during a traffic stop, and if the person filming is the subject of the police encounter. But the law qualifies those exceptions, saying they apply only if the person recording is "not interfering with lawful police actions" or "unless a law enforcement officer determines that the person is interfering in the law enforcement activity or that it is not safe to be in the area and orders the person to leave the area."
The law, the suit says, is too broad and vague, and it will have a chilling effect on the public and news organizations, especially when trying to record police activity in crowds, during protests, or on narrow sidewalks.
"We have a right to hold police officers accountable by recording their activities in public," Esha Bhandari, deputy director of the ACLU Speech, Privacy, and Technology Project, said in a press release. "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."
The right to film the police has been upheld by multiple federal appeals courts as a core First Amendment activity. In July, the 10th Circuit Court of Appeals ruled that a Colorado police officer did not have qualified immunity from a lawsuit alleging that he illegally tried to stop a man from filming a DUI traffic stop. The court ruled that a reasonable officer would have known that he or she was interfering with protected First Amendment activity.
However, that hasn't stopped police from threatening or detaining people who record them, nor has it stopped legislators from proposing restrictions on the public's ability to film the police.
The bill's sponsor, state Rep. John Kavanagh (R–Fountain Hills), wrote in a March USA Today op-ed that he introduced it "because there are groups hostile to the police that follow them around to videotape police incidents, and they get dangerously close to potentially violent encounters."
"I can think of no reason why any responsible person would need to come closer than 8 feet to a police officer engaged in a hostile or potentially hostile encounter," Kavanagh wrote. "Such an approach is unreasonable, unnecessary and unsafe, and should be made illegal.
Other plaintiffs in the lawsuit include the Arizona Broadcasters Association, Arizona Newspapers Association, and the National Press Photographers Association.