Published:February 22, 2022
The Arizona House Appropriations Committee on Monday green-lit a bill that would criminalize filming cops on the job in some cases, reinvigorating questions around the constitutionality of such provisions.
If passed into law, House Bill 2311 would make it illegal “for a person to knowingly make a video recording of law enforcement activity, including the handling of an emotionally disturbed person, if the person does not have the permission of the law enforcement officer” and is within 8 feet of the cop. The original text stipulated that it would be a crime to do so within 15 feet, but Rep. John Kavanagh (R–D23), the bill’s sponsor, altered the radius in an amendment meant to assuage constitutional objections.
Whether it actually accomplishes that is up for debate.
“Can you be arrested for standing still while wearing a GoPro under this statute?” asks T. Greg Doucette, an attorney who specializes in criminal defense and free speech law. “It seems the answer here is yes, which would violate the First Amendment (since standing still isn’t interfering with an officer’s duties).”
The right to film government officials in public has been at the center of a slew legal challenges over the last few decades. And several federal appeals courts—including the 1st, 3rd, 5th, 7th, and 11th Circuits—have ruled that it is indeed an activity protected by the First Amendment.
It was also established in the 9th Circuit—where Arizona is located—almost 30 years ago, in a 1995 decision where the court ruled that a cop violated the Constitution when he physically sought to stop a man from videotaping a public protest in 1990.
Yet Kavanagh appears undeterred by that precedent. He’s not the only state lawmaker who has prioritized this sort of legislation. Arizona joins Florida in this pursuit; the Sunshine State currently has a bill on the table that would criminalize “directly or indirectly harass[ing]” police by approaching within 30 feet without the officer’s permission. The legislation’s vague wording would make it effectively impossible to legally film law enforcement on the job.
The sorts of proposals are “to chill speech, absolutely,” adds Doucette. “It will empower cops to say, ‘I’m going to arrest you if you don’t stop.’ And even though many of those arrests would get dismissed as First Amendment violations, you’ll have a bunch of people who plead to avoid trial or go broke trying to vindicate their rights.” Those who violate the Arizona bill—which passed the committee 7–5 along party lines—would be subject to a 30-day jail sentence if he or she refused to stop filming after an officer demanded it.
Some police departments view the activity as constitutionally protected. Several Denver cops, for example, found themselves under scrutiny after they searched a man’s tablet without a warrant in an attempt to delete a video he took of them beating a suspect during a drug arrest. Their actions violated the Denver Police Department’s own training, which instructs its employees that the public has a First Amendment right to record them in their public duties.
But Denver is subject to the 10th Circuit, where there is no explicit precedent on the matter. So despite breaking the department rules, the officers received qualified immunity, the legal doctrine that allows state and local government actors to violate your rights without fear of federal civil suits if the way in which they do so has not been “clearly established” in a prior court ruling from the same federal circuit or the Supreme Court. The latter declined to take up the case late last year.
Law enforcement accountability has been a popular subject of late, spurred in motion by the 2020 death of George Floyd, a Minneapolis man who was killed by former police officer Derek Chauvin. The murder was caught on video, sparking a national discussion around how to best confront police abuse.
Various legislatures, however, have responded in ways that may seek to curtail accountability, the likes of which are not limited to bills concerning filming police on the job. In August, local lawmakers in Nassau County, New York, passed a similarly vague law to allow police officers to sue people who “harass, menace, assault or injure an individual due to such individual’s status as a first responder” for up to $50,000.
“This is just sheer base-pleasing gesturing by the legislators doing this,” Ken White, a partner at Brown White and Osborn LLP and the man behind the Popehat Twitter account, told me last summer. “They say it’s required because they’re being assaulted. Well, let me tell you, I’ve never seen a situation where actual assaults of cops are not vigorously prosecuted, and if anything, they’re prosecuted too easily and questionably. This is really trying to deter speech against cops that might hurt the most delicate person’s feelings.”