Arizona Moves to Hold Cops Unaccountable

A Yuma Police Department officer stands on the hood of his squad car and looks over the backyard fence of a home in Yuma, Ariz, March 31.


Randy Hoeft/Associated Press

No one would have known what happened to George Floyd without cellphone video taken by bystanders of Officer Derek Chauvin kneeling on Floyd’s neck. Under a new Arizona law, such viewers could face a $500 fine and 30 days in jail. On July 6, Gov. Doug Ducey signed legislation making it illegal to detect officers within eight feet of police activity.

The new law is unconstitutional. Last week, the US 10th Circuit Court of Appeals, as the seventh federal circuit court, ruled that the First Amendment protects the right to record police activity. A three-judge panel found that a primary purpose of the First Amendment is to “protect free discussion of governmental affairs.” The first change protects news gathering, which includes police filming. And the inclusion is “clearly” an exercise of free speech: “If the creation of speech did not warrant First Amendment protection, the government could circumvent the Constitution simply by going upstream and stemming the source of the speech,” the court ruled .

In the past quarter century, six other federal appeals courts have taken up the issue, and all have come to the same conclusion. One of them was the Ninth Circuit, which serves Arizona.

Of course, no constitutional right is unlimited. While the First Amendment permits “reasonable limitations” on the time, place and manner of speech, they must be “narrowly tailored” to serve a “significant government interest.” Arizona’s new law fails that test.

State Assemblyman John Kavanagh, the sponsor of the bill, claims it will deter police interference and protect civilians from harm. But it’s not narrowly tailored to serve those goals. It’s not illegal be within 8 feet of police activity, just up recording. It was already a crime to interfere in law enforcement.

The peaceful reception of police officers in public space without interfering with their work must not be subject to any restrictions. The law, which goes into effect in September, will cut access to information, reduce government accountability, sweep police misconduct under the rug and punish civil society engagement.

Ms. Gervasi and Ms. Bidwell are attorneys at the Institute for Justice.

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Appeared in the print edition on July 18, 2022. Arizona Moves to Hold Cops Unaccountable

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