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First Amendment advocates respond to a new Arizona law limiting recording of police

Arizona Gov. Doug Ducey on Jan. 31, 2022, in Washington.
Win McNamee
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Arizona Gov. Doug Ducey on Jan. 31, 2022, in Washington.

First Amendment advocates are considering their options in response to an Arizona law signed last week making it a crime to record video police officers from closer than 8 feet away.

The law, which was signed on Wednesday by Arizona Gov. Doug Ducey, states that people can be charged with a misdemeanor if they record police from less than 8 feet away after getting a verbal warning, as they are conducting law enforcement activity like arrests, questioning suspicious individuals, and handling those who are emotionally disturbed.

While it makes some exceptions for those who are subjects of police contact, in an enclosed structure on private property, and in vehicles, organizations supporting free speech say it unnecessarily restricts activity protected by the First Amendment.

"There is zero evidence in the record that this law actually addresses a problem," said K. M. Bell, an attorney for the ACLU of Arizona. "We are investigating all possible options for addressing this unconstitutional law."

Bell said there were several specific problems with the law, including that it was overly broad. It limits what people can do on their phones while near a police officer, which amounts to a First Amendment violation, Bell said.

"This is a content-based restriction, because I can stand 3 feet from an officer and play Angry Birds, but I can't stand 3 feet away and record them," Bell said.

Mickey Osterreicher, general counsel for the National Press Photographers Association (NPPA), said he finds the law "arbitrary" and "unworkable," because the 8-foot restriction does not accommodate dynamic situations like protests.

"Giving [police] the authority to tell someone to stop recording is a violation of the First Amendment," he said.

NPPA was one of several associations and media outlets that signed a letter last week encouraging the governor to veto the bill. Osterreicher said that while he hoped the letter would have changed the governor's mind, losing a challenge to the law would require a lot of taxpayer money.

"We had hoped to be able to do this the easy way, unfortunately it seems that the state of Arizona has done this the hard way," said Osterreicher.

A request for comment to Ducey's press office Friday afternoon wasn't immediately answered.

Dan Barr, a media lawyer for the First Amendment Coalition of Arizona, said he and his colleagues are still assessing whether to challenge the law itself or to wait until someone is charged after the law takes effect on Sept. 24.

"Everyone thought that this bill was dead. It's crazy that it sprung to life at the end of this session," he said. "I think it's something where, once the law gets challenged, it will fall."

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Austin Cope