SAN FRANCISCO–A new Arizona law that bans people from recording videos within eight feet of police violates the constitutional rights of legal observers, grassroots activists, and other Arizonans, says a brief filed Friday in federal court by the Electronic Frontier Foundation (EFF), two Arizona chapters of the National Lawyers Guild (NLG), Poder in Action, and Mass Liberation AZ.
“Arizonans routinely hold police accountable throughout their communities by recording them within eight feet,” said Mukund Rathi, an EFF attorney and Stanton Fellow focusing on free speech litigation. “Arizonans use these recordings to document police activity at protests, expose false charges against protesters, and inform the public of police racism and misconduct. Everyone must be free to use mobile devices and social media to record and publish the news, including how police use their powers.”
The new law makes it a crime, punishable by up to a month in jail, to record videos within eight feet of law enforcement activity. The law was signed by Gov. Doug Ducey in July and is scheduled to take effect Sept. 24.
Several news organizations and the American Civil Liberties Union of Arizona sued last month to prevent the law from going into effect, arguing it “creates an unprecedented and facially unconstitutional content-based restriction on speech about an important governmental function.”
The friend-of-the-court brief filed Friday by EFF and its collaborators agrees, and helps illustrate the potential impact of the law by detailing how the grassroots organizations create and use recordings to hold police accountable and keep their communities free and safe.
The groups, represented by EFF and co-counsel Kathleen E. Brody of Phoenix, told the court the new law harms efforts by legal observers and others to exercise their fundamental right to record police activity. Protest activity often occurs within eight feet of police, and sightlines of police activity are often obscured at greater distances. Also, officers often move closer to protestors and those who are recording videos–essentially creating the crime under this law. Video recordings also are more accurate, detailed, and shareable than written note-taking.
"Police and prosecutors in Maricopa County have arrested and falsely charged hundreds of protesters for their free expression in recent years," said Lola N'sangou, Executive Director of Mass Liberation AZ, a Black-led abolitionist group based in south Phoenix and organizing throughout Arizona. "Scores of these protesters faced false felony charges that were later dropped, in many cases due to recordings filmed within eight feet of the arrests and surrounding circumstances. Without these recordings, most of these protesters would have spent decades in prison. One protester faced 100.5 years on completely fabricated charges."
The case is Arizona Broadcasters Association v. Brnovich, 2:22-cv-01431 in the U.S District Court, District of Arizona.
For the EFF, NLG, Poder in Action, and Mass Liberation AZ amicus brief: https:/eff.org/document/arizona-broadcasters-association-v-brnovich-amicus-brief
For the underlying complaint: https://www.aclu.org/legal-document/arizona-broadcasters-association-v-brnovich-complaint
For more on the right to record: https://www.eff.org/issues/right-record