By Annelise Yackow, Vol. 21 Staff Writer
The summer of 2020 was a pivotal time for the United States, particularly for the future of the criminal justice system, but also for First Amendment rights. Following the murder of George Floyd at the hands of Minneapolis Police, national protests broke out calling for improved police accountability in the United States. People began to pay more attention to the actions of their local officers and to push for greater police accountability.
One such tool of police accountability lies in the hands of 85% of Americans: the smartphone. The ability to film anything, at any time, and publish the video to the internet or send it via text message has given the average citizen significantly more power in holding their local law enforcement accountable to their community. This power to film provided some of the most significant evidence in the prosecution of Derek Chauvin, one police officer responsible for George Floyd’s death. Some states now are seeking to limit this accountability.
Arizona’s Law
On June 23, 2022, the Arizona Legislature enacted House Bill 2319 (“HB2319”). This bill formally outlaws an individual from “knowingly mak[ing] a video recording of law enforcement activity” if the individual is within eight feet of the law enforcement activity. Even on their own private property, an individual can only record law enforcement from an “adjacent room or area” if they are less than eight feet away. The law also gives an officer the ability to charge the individual if the individual is still, in the officer’s opinion, interfering with law enforcement activity. This is fairly vague and is ripe for abuse.
In response to the law, the ACLU of Arizona and ten media organizations filed suit in the U.S. District Court for the District of Arizona on August 23, 2022 for violation of their First Amendment Rights. Particularly, the suit alleges that HB2319 is overinclusive and substantially overbroad since it limits video recording of one topic: police activity.
The Lawsuits
There is a long legal history of blocking limitations of filming the police. In 1987, in City of Houston v. Hill, the Supreme Court held that “[t]he freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state.” Then, in 2011, the First Circuit held that a private citizen has the right to record video of police officers because the Constitution clearly protects the right to “receive information and ideas.” Specifically, the court held that “The First Amendment protects a significant amount of verbal criticism and challenge directed at police officers.”
In response to the ACLU’s suit against the State of Arizona, on September 9, 2022, a federal judge for the District of Arizona issued a preliminary injunction, meaning the law would not take effect on September 24, 2022. The Attorney General for the state of Arizona, Mark Brnovich, has stated he doesn’t intend to defend the law. As of now, six of the twelve U.S. Courts of Appeals have ruled for allowing citizens to film police without restrictions. Taking this into account, one must wonder why the Arizona State Legislature chose to pass a law with such a strong legal precedent against it from the highest courts in the United States.
So What Now?
Arizona State Representative John Kavanagh sponsored the bill in order to give police a “buffer.” In statements he described “hostile” groups who follow the police and film them, interfering with police conduct. However, there are already laws that criminalize interfering with a police investigation. Arizona Revised Statue 13-2402 makes it illegal to obstruct or delay the “performance of a governmental function by a public servant.” Surely, this law would cover any unreasonable activity by a group considered to be hindering a police investigation.
However, this bill echoes other states’ bills and recent laws in what appears to be a response to the Black Lives Matter protests. For example, Florida has passed a statue for “cyberintimdiation by publication” that may seem innocent on the surface, but it has broad implications for filming of police activity. This law is so broad that there were calls from commentators on both the political left and right that it may have unintended consequences and ultimately give too much power to local Florida prosecutors. Local attorneys have even called it unconstitutionally vague and a clear constraint of freedom of speech.
Similarly, Oklahoma governor Kevin Stitt signed House Bill 1643 (otherwise known as The Police Doxxing Law) in early 2021. This law prohibits any individual from posting a video or picture of a police officer with any identifying information. An individual can get around this law by blurring any identifying information of an officer. While there has been significant outcry that this is a violation of First Amendment rights, no one has challenged its constitutionality in court since it went into effect on November 1, 2021.
These laws point to a threatening national trend: the chilling of First Amendment protections in challenging police conduct. With the Florida and Oklahoma laws still in effect, it leaves concern for the future of the First Amendment rights and police accountability in the United States.
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