Sept. 10, 2022 - A federal judge has granted a preliminary injunction against a law that would have limited the right to record police in Arizona, blocking the law from going into effect.
The National Press Photographers Association (NPPA), together with the Arizona Broadcasters Association and the American Civil Liberties Union of Arizona and 8 other media organizations, brought a lawsuit to challenge Arizona’s HB 2319, a law which makes it a crime to record police officers within eight feet of law enforcement activity without permission of the officer. The suit alleges that HB 2319 is a violation of the First Amendment and sought to stop the law from going into effect.
The defendants in the case—Arizona Attorney General Mark Brnovich, the Maricopa County Attorney and the Mericopa County Sheriff—did not challenge the motion for a preliminary injunction and indicated that they do not intend to defend the law. During a hearing on Friday, Judge John Tuchi ruled that the law is content based, subjecting it to strict scrutiny, and that strict scrutiny hadn’t been met. As a part of the findings required to grant a preliminary injunction of this sort, the judge noted that it is “black letter law” that because the law violates the First Amendment, the law would cause “irreparable harm”. He further determined that it is in the public interest to protect all constitutional rights, including First Amendment rights. From the bench he ruled that the law is enjoined from being enforced as of Friday, and the injunction is in place until the case is resolved on the merits.
The law was set to go into effect on September 24, 2022 and would have had a chilling effect on documenting police activity in many situations, including large protests. NPPA wrote letters joined by over twenty press freedom groups and news organizations on three separate occasions warning Arizona legislators and the governor of the unconstitutionality of the law.
“We are very pleased with the Court’s ruling, which should send a strong message to any others considering such an ill-advised law” said NPPA general counsel Mickey H. Osterreicher, who drafted the letters along with deputy general counsel Alicia Calzada. “Going forward we hope the court makes the injunction permanent and upholds the clearly established right to record police performing their official duties in public,” he added.
The First Amendment guarantee of free speech has little meaning without the right to gather information and create expressive works. By controlling when journalists and the public can record police, the government can control the message itself. The constitutional right to record police engaged in official duties is one of the public’s most effective accountability tools against police wrongdoing and is one of the few ways community members and the media can hold police accountable. Over the last decade, the simple act of recording police activity has raised public awareness about police brutality and ignited movements to demand reform across the country. Arizona’s HB 2319 would directly suppress free speech rights, while also limiting public accountability and effective monitoring of government actions.
Every federal circuit court to consider the matter, including the Ninth Circuit, which covers Arizona, has recognized the constitutional right to record police engaged in official duties in public.
The media organizations represented by Ballard Spahr LLP and the Arizona ACLU include: the Arizona Broadcasters Association; the American Civil Liberties Union of Arizona; the Arizona Newspapers Association; Fox Television Stations, LLC; Gray Media Group, Inc., d/b/a KTVK-KPHO and d/b/a KOLD; KPNX-TV, a division of Multimedia Holdings Corp.; NBCUniversal Media, LLC; National Press Photographers Association; Phoenix Newspapers, Inc.; Scripps Media, Inc., d/b/a/ KGUN-TV and d/b/a KNXV-TV; and States Newsroom/Arizona Mirror.
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