As the Reporters Committee has argued in brief after brief, it should be uncontroversial that the First Amendment protects your right to document what law enforcement does in public. And in many jurisdictions, it plainly does, as the U.S. Courts of Appeal for the First, Third, Fifth, Seventh, Ninth and Eleventh Circuits have all concluded. (Yes, it’s just an odd coincidence that only the odd-numbered federal appellate courts have recognized the right to record law enforcement so far.) All the same, the Arizona House advanced legislation this month that would criminalize filming a police officer from within eight feet without the officer’s permission.
The Reporters Committee joined a letter, spearheaded by the National Press Photographers Association, condemning the bill and urging legislators to withdraw it. It’s hardly a novel insight, as the U.S. Supreme Court has recognized, “that some police officers may exploit the arrest power as a means of suppressing speech.” And already, as our friend-of-the-court briefs have highlighted, vague public-order offenses like obstruction or disorderly conduct give law enforcement a dangerous degree of discretion to shut down reporting. The Arizona legislation would even more expressly delegate to law enforcement the decision whether to allow reporting on their own public conduct.
The Arizona bill is part of a broader, troubling trend. After journalists documented extensive police misconduct during the racial-justice protests of the last two years, some jurisdictions reacted not by reining in law enforcement but by throwing up barriers to reporting on them. Oklahoma, for instance, adopted an “anti-doxxing” bill broad and vague enough that it could reach individuals who share photos of police officers. Florida’s much-discussed “anti-riot” bill likewise created a new criminal offense — “cyberintimidation by publication” — that critics alleged would risk chilling speech “critical of law enforcement officials and other public officials.”
We hope the rest of the Arizona legislature, when it turns to this legislation, will think better of it. The bill would predictably jeopardize the public’s right to know what its officials are up to — and changing course now would spare Arizona the expense of defending a flatly unconstitutional law.
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 Stanton Foundation National Security/Free Press Legal Fellow Grayson Clary and Technology and Press Freedom Project Legal Fellow Gillian Vernick.