Courts have long held that recording police is protected by the First Amendment. Lawmakers in Arizona tried to criminalize it anyway.
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Now, in this episode, we take you to Arizona, where lawmakers passed a law that would make it a crime to record police within eight feet. While it has since been blocked by a federal court, its passage ignites serious questions about our First Amendment rights and how far people in power will go to limit police accountability and dissent.
Why We Covered This Topic
If you’re a News Beat lifer or only recently found our pod, you may remember that we’ve previously reported on efforts by lawmakers to criminalize protests by limiting their ability to demonstrate in public. And during the 2020 racial uprisings following the police slayings of George Floyd and Breonna Taylor, among many others, we produced an episode about a particularly violent crackdown in New York. Importantly, the only reason we know that the NYPD misled the media and the public about what happened during that protest in the Mott Haven neighborhood of the Bronx is that investigators with Human Rights Watch, a global organization, combed through at least 150 eyewitness videos. HRW concluded that it was actually the NYPD that planned an assault, not the protesters.
This is key, because video has been an important tool in holding the police to account—or at least attempting to. If it weren’t for an eyewitness video of Floyd’s murder by former Minneapolis Police Officer Derek Chauvin, we likely would never have known the full story of what happened outside the convenience store that day. If you recall, the title of the original press release issued by the Minneapolis Police Department said: “Man Dies After Medical Incident During Police Interaction.” (Seriously?!?!)
Two officers arrived and located the suspect, a male believed to be in his 40s, in his car. He was ordered to step from his car. After he got out, he physically resisted officers. Officers were able to get the suspect into handcuffs and noted he appeared to be suffering medical distress. Officers called for an ambulance. He was transported to Hennepin County Medical Center by ambulance where he died a short time later.”
The last sentence is truly astonishing considering what we know now: Responding paramedics checked for a pulse as soon as they arrived, but couldn’t find one.
The police department outright lied about what happened, and Chauvin would’ve literally gotten away with murder if then-17-year-old Darnella Frazier never caught the horrific slaying on video.
That brings us to Arizona, where lawmakers this year passed a law that would criminalize the recording of police within eight feet—a seemingly arbitrary distance. As you’ll hear in the episode, the justifications for such a brazen attack on our First Amendment right to record police fall along very family pro-cop rhetoric.
What You’ll Learn in This Episode
Courts have consistently held that recording police is protected by the First Amendment. Just this past summer, the 10th Circuit U.S. Court of Appeals in Colorado ruled in a related case: The “right to film the police falls squarely within the First Amendment’s core purposes to protect free and robust discussion of public affairs, hold government officials accountable, and check abuse of power.”
The Arizona law was set to go into effect in September, but a federal judge issued a temporary injunction in response to a lawsuit by the ACLU—effectively blocking it from being implemented.
The attempt to stop people from recording police came after it was revealed that law enforcement officials in Maricopa County, which includes Phoenix, erroneously hit protesters in 2020 with gang charges. The problem? They essentially made up a gang and charged dozens of demonstrators with being members of this fictitious outfit. Many had their charges dismissed after video evidence helped prove their innocence.
While the law is on hold, civil rights advocates say it can still cause a chilling effect and suppress dissent by making people fearful of legally recording police interactions with the public.
Who We Interviewed & What They Said
Mukund Rathi, an attorney and Stanton Fellow at the nonprofit digital rights organization Electronic Frontier Foundation. EFF filed an amicus brief in the case.
The Arizona law is unprecedented. To our knowledge, no other government in the United States has ever tried to specifically prohibit and criminalize recording police. And that's why it's so good that this law has been blocked, preliminarily, and will hopefully be permanently enjoined by the court.
Joseph Larios, an organizer with Mass Liberation AZ, a grassroots organization in Arizona that played a key role in documenting the arrest of dozens of protesters in 2020.
This is part of a concerted effort to chip away at any ability to hold police accountable, at any level. And I think with this law, in particular—there's already issues around qualified immunity, which even with video recording it’s hard to hold police accountable in the court of law. And so this law, I feel like isn't even a part of that, like it goes a step further. This law around recording people is, to me, a large part about allowing police to continue to do what they're designed to do, which is make sure that people are exploitable within prison.
Read the amicus brief filed by EFF on behalf of grassroots organizations and media institutions. It lays out, point by point, the serious problems with the law’s recording restrictions, specifically the eight-foot parameters.
Check out the work being done by Mass Liberation AZ. Along with documenting police actions, it is also a liberation organization that advocates for decarceration and prosecutor accountability, among other issues.
Do yourself a favor and check out this investigation by ABC15 in Arizona, which exposed how local officials used gang charges to punish protesters. Here’s from the report: “ABC15 has spent months investigating the gang charges and other protest prosecutions. The station interviewed defendants and their attorneys, obtained hundreds of pages of police reports and grand jury transcripts, and watched hours of police body camera and surveillance video. The evidence shows police and prosecutors presented grand jurors with dubious claims, one-sided evidence, exaggerations, and lies.”
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