In Arizona, an unconstitutional law quickly collides with the First Amendment

That was fast.

Our readers are already familiar with Arizona’s House Bill 2319, a statute enacted this summer that would have given police officers standardless discretion to decide whether they want to be recorded from within eight feet. The Reporters Committee had joined a coalition letter, spearheaded by the National Press Photographers Association, urging lawmakers not to pass legislation that would never survive contact with the First Amendment. No luck; the bill passed.

But the law was swiftly challenged by the American Civil Liberties Union and a host of press groups — and when it came time for Arizona to defend the law, no one stepped up to the plate.

That doesn’t come as much of a surprise: There was no non-frivolous argument to be made in defense of the law. The U.S. Court of Appeals for the Ninth Circuit — whose jurisdiction covers Arizona — has already held that “[t]he First Amendment protects the right to photograph and record matters of public interest,” including “the right to record law enforcement officers engaged in the exercise of their official duties in public places.” And because liability under the law was untethered from any consideration of whether an individual was in fact interfering with police duties, HB 2319 had no hope of satisfying the strict scrutiny the Constitution requires.

The U.S. District Court for the District of Arizona didn’t have much trouble, in that light, concluding that the challengers were entitled to a preliminary injunction against the law. In a six-page order, Judge John J. Tuchi wrote that the plaintiffs had “demonstrat[ed] that the law’s purpose is not to prevent interference with law enforcement, but to prevent recording.”

As the Arizona Mirror reported, it’s still possible that one chamber or the other of Arizona’s legislature will intervene in an effort to revive their handiwork. Still, it seems unlikely that the law, originally scheduled to take effect by Sept. 24, will ever go into operation.

A good-news story, then, at least in part. But it’s sobering that two houses of a state legislature would write — and a governor would sign — a law that so transparently violated the First Amendment. Unconstitutional laws can cause mischief in the time it takes to get them struck down, or even without taking effect; they can encourage officials on the ground to disregard their legal obligations, while discouraging the public and press from exercising their rights.

However swiftly enjoined, then, bills like HB 2319 have real costs. We hope Arizona leaders will take this loss to heart and show greater concern for First Amendment freedoms going forward.

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The Technology and Press Freedom Project at the Reporters Committee for Freedom of the Press uses integrated advocacy — combining the law, policy analysis, and public education — to defend and promote press rights on issues at the intersection of technology and press freedom, such as reporter-source confidentiality protections, electronic surveillance law and policy, and content regulation online and in other media. TPFP is directed by Reporters Committee attorney Gabe Rottman. He works with RCFP Staff Attorney Grayson Clary.