An Arizona bill could limit the public’s ability to record police activity.
House Bill 2319 would make it illegal to record police activity within eight feet without the permission of an officer. The bill’s language originally began at 15 feet, but was later changed.
The bill would make an exception for police activity that is in an enclosed structure and on private property. A person who is allowed to be on the property would be allowed to record from another room that is less than eight feet away with permission from the officer.
Anyone who is subject to police activity, such as a sobriety test, handcuffing or searching, would be allowed to record if the officer deems they are not interfering.
The bill’s sponsor, Republican Rep. John Kavanagh, said he introduced the bill to find a balance between people filming police activity and safety for police officers.
“I’m trying to balance the person who’s filming this constitutional right to document the encounter with safety considerations and law enforcement evidence preservation considerations of the police officer,” Kavanagh said on Arizona Horizon in March.
David J. Bodney, an attorney who focuses on media and constitutional law at Ballard Sphar LLP, said this law is unnecessary.
“There are already laws on the books that give law enforcement officers the ability to prevent any interference with an arrest,” Bodney said.
If this bill would pass and become law, Bodney said the bill would be challenged in court almost immediately.
“A strong and persuasive challenge to this law would be inevitable,” Bodney said.
If this law is broken, an offender could face a class 3 misdemeanor and up to 30 days in jail. In most cases, breaking this law would be a crime on par with excessive speeding, leaving the scene of a parked accident or assaultive touching.
The United States Court of Appeals for the Ninth Circuit, which includes Arizona, has previously said people have the right to record matters of public interest.
“The panel held that the First Amendment protected the right to photograph and record matters of public interest,” the Court of Appeals ruled in Askins V. Department of Homeland Security in 2018. Other appeals courts, including the First, Third, Fifth, Seventh and Eleventh circuits, have also emphasized the right to record police in separate cases.
Many people like Daniel Barr, an attorney who works in civil litigation involving media law issues at Perkins Coie LLP, said this law is unconstitutional.
“People have a First Amendment right recording the police doing what they’re doing in public,” Barr said.
The National Press Photographers Association, which advocates for visual journalists, wrote a letter to Kavanagh and chairwoman Rep. Regina Cobb which said they are in opposition to the bill as it violates the free speech and press clauses of the First Amendment.
Grayson Clary, who is on the Reporters Committee for Freedom of the Press, said this bill would change how reporters are able to report on the police.
“It’ll have a chilling effect on how law enforcement is covered,” Grayson said.
HB 2319 passed in the Arizona House of Representatives on February 23 and was given do-pass recommendations from both the Senate Majority and the Senate Minority caucuses on March 23, though it has not officially passed the Senate.
