Federal Judge Upholds Arizonans’ Right to Record the Police

By Sophia Cope and Adam Schwartz

The Arizona legislature last year passed a law (H.B. 2319 codified at A.R.S. § 13-3732) banning the video recording of police activity within eight feet of officers, making doing so a class 3 misdemeanor (which would allow for up to 30 days in jail). The law included some exceptions, such as for “a person who is the subject of police contact.”

A coalition of news organizations and the ACLU of Arizona sued state and county government officials in federal court arguing that the law was unconstitutional. EFF filed an amicus brief in support of the plaintiffs in the district court.

We are happy to report that the court in the case, Arizona Broadcasters Association v. Mayes, recently entered a stipulated permanent injunction in favor of the plaintiffs, pursuant to a settlement between the parties. The order prevents Arizona government officials from enforcing the law.

The court’s order includes strong language in favor of the right to record the police. The order declares that the law violates the First Amendment because “there is a clearly established right to record law enforcement officers engaged in the exercise of their official duties in public places.” This conclusion reflects Ninth Circuit precedent (of which Arizona is a member), as well as that of several other circuits.

Importantly, the court also applied strict scrutiny, a high standard for government officials to meet if they want to regulate speech. The court’s order concluded that “the statute does not survive strict scrutiny because it is not narrowly tailored or necessary to prevent interference with police officers given other Arizona laws in effect.”

The court’s order reflects the reality that citizen recordings have been critical to police accountability, most notably in the case of George Floyd who was murdered by Minneapolis police officers in 2020. Unfortunately, other state legislatures are pursuing similar laws—which we urge governors to veto. We must preserve a critical tool for citizens to hold those with the ultimate power—the authority to engage in lethal force—accountable.

Source: EFF

Sophia Cope is a Senior Staff Attorney on the Electronic Frontier Foundation’s civil liberties team, working on a variety of free speech and privacy issues. Key topics include border searches of electronic devices, surveillance and human rights, the right to record the police, Section 230, and student speech and student privacy online. She has been a civil liberties attorney for nearly two decades and has experience in both litigation and policy advocacy. Her writing has appeared in the New York Times, Guardian, Slate, and Huffington Post.

Adam joined EFF in 2015. He advocates before courts and legislatures against surveillance, censorship, and discrimination.

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