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Arizona Attorney General Settles Lawsuit, Agrees to Toss Unconstitutional Law Banning the Recording of Cops

by Jo Ellen Nott

In a victory for the First Amendment, the Arizona Attorney General agreed to settle a lawsuit brought in August 2022 challenging a state law that banned recording police officers within eight feet. The law, HB2319, passed in the Arizona Senate on June 23, 2022, was signed into law by former Governor Doug Ducey (R) on July 6, 2022.

The law would have prohibited the video recording of police officers within eight feet of where law enforcement activity was happening. If a person did not cease and desist after being told by an officer, he or she could face a class 3 misdemeanor and up to 30 days in jail.

Ducey claimed that the legislation was necessary to protect police officers from being harassed or obstructed. State Representative John Kavanagh (R-Fountain Hills), a former New York Police Department officer, penned the legislation. In a 2022 March opinion piece defending the eight-foot ban, Kavanagh explained that individuals filming that close to an officer posed a potential danger to active investigations and arrests.

Opponents of the bill argued that the intent of the law was to silence public scrutiny of police activity. Their opposition led to a lawsuit being filed in August 2022 by a group of journalists, civil rights advocates, and individuals who had been arrested or detained by police. The plaintiffs argued that the law violated their First Amendment right to record police officers in public.

Page 10 of the lawsuit explained why the law is unconstitutional: “By criminalizing the recording of police officers from a certain distance, HB2319 creates a new risk of arrest and prosecution for activity that is protected by the First Amendment to the U.S. Constitution. HB2319 is a content-based speech restriction because it prohibits video recording of only one topic: law enforcement activity.”

TechDirt’s Tim Cushing highlighted the selectivity of the law by pointing out the eight-foot buffer zone did not apply to all government employees, just cops. That in itself made it unconstitutional. Cushing predicted it would create a problem the state was not going to be able to address adequately.

On September 9, 2022, a federal judge granted a temporary injunction of the new law effectively blocking its enforcement and giving the court case time to play out. The judge found that the law was likely to have a chilling effect on First Amendment-protected activity.

The injunction could have been lifted if the Arizona government had been able to convince the court the restriction was minimal, narrowly crafted to serve a legitimate government interest, and could not be achieved without this law. Then-Attorney General Mark Brnovich declined to argue against the plaintiffs and entered a “non-opposition” notice in court.

On July 12, 2023, current Arizona Attorney General Kris Mayes (D) agreed to the injunction. The state also agreed to dismiss the case and pay $69,000 in legal fees to the plaintiffs, which included the Arizona Broadcasters Association, the American Civil Liberties Union, and several local media outlets. The settlement in this case is a victory for the First Amendment and the public’s right to know and hold law enforcement officers accountable for their actions during the discharge of their official duties in public spaces.  

Sources: KPNX, Raw Story, techdirt.com

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