Is Arizona's New Police Recording Law Constitutional?

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Ryan Lacey:  Hello, and welcome to this Federalist Society webinar. This afternoon, Tuesday, August 30, we discuss if Arizona's new police recording law is constitutional. My name is Ryan Lacey, and I'm an Assistant Director of Practice Groups at The Federalist Society. As always, please note that all expressions of opinions are those of our experts on today's program.

 

      Today, we are fortunate to have an excellent panel moderated by Stephen Klein, whom I'll introduce very briefly. Steve Klein is a Partner at Barr & Klein PLLC. Steve has published articles in several legal journals, and his commentary has appeared in the Wall Street Journal, the Washington Times, the Detroit News, and other outlets. Steve earned a bachelor's degree in politics at Hillsdale College and a law degree from Ave Maria School of Law. He is licensed to practice law in the District of Columbia, Illinois, and Michigan.

 

After our speakers give their remarks, we will turn to you, the audience, for questions. If you have a question, please enter it into the Q&A feature at the bottom of your screen, and we will turn to Q&A as we can toward the end of today's program.

 

With that, thank you for being with us today. Steve, the floor is yours.

 

Stephen Klein:  Thanks, Ryan. The topic of recording police needs almost no introduction. While the video of the beating of Rodney King from the early 1990s is perhaps the most ingrained in the memory of those of us who were there for its publication, it seems today that not a week goes by without a new video of alleged police malfeasance going viral on social media. With cameras attached to just about every mobile phone, this is no surprise; yet, House Bill 2319, a recent law passed by the Arizona Legislature, shows the legality of video recording police—or at least its limits—remains up for debate, which brings us to this webinar.

 

We'll begin with Alexa Gervasi, who will describe the law and argue its constitutional deficiencies, and then turn to Larry James, who will offer a defense. Alexa Gervasi is Executive Director of the Georgetown Center for the Constitution. Alexa is a graduate of Texas A&M University and Georgetown University Law Center. She clerked for the Honorable D. Michael Fisher of the United States Court of Appeals for the Third Circuit and for the Honorable Don R. Willet of the Fifth Circuit Court of Appeals. Prior to her recent move to Georgetown, she worked in private practice and at the Institute for Justice.

 

Larry James is the Managing Partner of Crabbe Brown & James LLP in Columbus, Ohio. He is a respected litigator as well as an advisor to local and national leaders. Mr. James is a life member of the Sixth Circuit Judicial Conference, and he has served as general counsel to the National Fraternal Order of Police since 2001. He is also a cofounder of the African American Leadership Academy.

 

Alexa, the floor is yours.

 

Alexa Gervasi:  Thank you, Steve. Yes. So we’re here today to discuss House Bill 2319, which will actually take effect here in a few days in Arizona. And what this bill does is, it makes it illegal to record police activity within eight feet of that activity. And there are exceptions to it—for instance, if you're in a car, you can record from within your vehicle—but generally, it's a blanket restriction on recording within eight feet of police conduct.

 

      And it’s really a pretty simple question today about its constitutionality. It is objectively a restriction on free speech. Every single court of appeals to have addressed the question has held that there is a First Amendment right to record police in a public space.

 

And this is a content-based restriction. The only way to know whether or not the statute is violated is to look at the content of the recorder's recording. Was it police activity? If yes, it's a violation. If it was other content, it is not a violation, and therefore, it must survive strict scrutiny. And this law does not even come close.

 

The proponents of this law have not even tried to satisfy strict scrutiny. There's certainly an interest in protecting police from interference, but the thing is that there's already a law in Arizona that does that. It is already illegal to interfere with police conduct, so all this law does is, it imposes a blanket restriction on the First Amendment right to record police in a public space without interfering. And that cannot satisfy strict scrutiny. It can't even satisfy intermediate scrutiny, and therefore, it is unconstitutional. And I think we're going to see this law collapse through a lawsuit filed by the ACLU just this past week.

 

Larry James:  My turn. Good mid-day, everyone. It's a pleasure to be here. If we look back at the history of where this law has evolved, we've found ourselves with a lot of the demonstrations and protests that have taken place, and law enforcement have found themselves in an impossible situation.

 

      Alexa is correct. The cases that have been decided by the various jurisdictions have indicated, under those circumstances—and you can read the facts of those cases, and the facts are very clear—where the law enforcement officer has overreached and tried to prohibit someone from recording.

 

The Arizona law does not prohibit someone from recording a police officer; matter of fact, it reads, notwithstanding this section, "A person who is a subject of police contact may record the encounter if the person is not interfering with the lawful police action, including searching, handcuffing, or administering a field sobriety test."

 

So what I think this law tries to do is impose an objective standard. I think the courts have said, without a doubt, that the right to record is not absolute. So in the situation we have, how is the public to know when they are interfering or crossing that line? Today, with the technology that we have, someone can be eight feet away, and they can get as much as they would get if they were two feet away. So the objectivity of trying to say, for law enforcement and the public, these are the ground rules so you know, going in, that you should not be within a certain framework of that officer, I think a couple things.

 

And the question is -- we can always debate whether the language should have been a little bit more crisp or clean, but the fact is, as Alexa said, there is plenty of legislation around the country that says no one may interfere with, obstruct, a public officer in his or her line of duty, and that's what this does. It only provides us with an objective standard where people might not know what are the ground rules and how close he or she can get to that individual.

 

Eight feet is not that far, and the idea of getting closer when an officer is trying to perfect an arrest or do a sobriety test and pay attention to what he or she is doing, I think this will clear up and give people an objective criteria that we understand that, under these circumstances, you may record. You can't livestream under any circumstances. That's the other thing I would add. Thank you.

 

Stephen Klein:  Thanks a lot, Larry. So, Alexa, it's interesting that, though a content-based restriction, the one law—perhaps one of the few to ever survive strict scrutiny at the Supreme Court—is a matter of distance in Burson v. Freeman illustrating that, on Election Day, you cannot electioneer within 100 feet of a polling place.

 

      To Larry's point, now that we have a history established of police being interfered with—not necessarily record, but -- not just recorded but also interfere with—a mere eight feet during law enforcement activity, couldn't that actually survive strict scrutiny?

 

Alexa Gervasi:  No, I don't think so. And so, there's a big difference between the bubble in election cases and in abortion clinic cases and what we're seeing here in this case. And the biggest distinction is who is impacted. Right? So in election cases, in abortion clinic cases, the concern is that everyday citizens are going to be impacted.

 

      The court said, when we're talking about polling places, it's almost impossible to determine when somebody is being influenced, when fraud, when election tampering is happening, and that's why that buffer satisfies strict scrutiny. When we look at the abortion clinic cases, the issue there is that people have the right to seek medical treatment without being interfered with, and that's not the situation here.

 

      While police officers may not want to be recorded, they don't have the right to say that. They don't have the right to say, "I don't want you recording me." They're public officers, and citizens have the right to record public officers in a public space performing their professional duties.

 

And I think that we can really see the problem here with the way that Larry defended the law, that when we look at the facts of these cases that the Courts of Appeals are looking at, we can see the line between right and wrong, that this maybe gives some objectivity to the standard of what is interference. But by that definition, by that defense of this law, we're conceding that it is overbroad. It is going to capture non-interference, something that is not factually interference.

 

And the courts of appeals have been very clear that if you are not interfering with police activity and you are in a public space, you have a constitutional right to record. Surely it might be nice, it might make things easier, if we have an objective number of eight feet or ten feet or fifty feet, but that's not what the Constitution demands. The Constitution doesn't demand easy. It doesn't demand the most simply workable answer to where our rights end and begin.

 

Sometimes it's difficult, but that's what it requires to protect our rights, and by being so over-broad, Arizona has gone well past its authority, and it can't even survive intermediate scrutiny.

 

Larry James:  I think a couple things. When we talk about strict scrutiny and objectivity, I think when the courts have looked at these other cases, it was clear in those instances, law enforcement had gone too far. This law does not impede, limit, the ability to record in any way, shape, fashion.

 

      And I think if you look at it from a factual situation of where -- let's take the George Floyd situation. That individual was, I would say, somewhere around maybe 15 to 20 feet away. The ability to record not only the action taking place but the voice -- with tools today, you can pick up almost anything.

     

      If we're talking about election places, clearly, they were talking about not interfering, so I think the Court’s going to be challenged because we haven't seen this sort of clarity and definition. I would rather have this sort of clarity than just leave it speculative. Whether we're talking about the California Code, the Texas Code, or any of the other legislation which says every person who willfully resists, delays, obstruct a public officer, peace officer, or an emergency medical technician—whether that's a fireperson, EMS, or what have you—I would have loved to have seen this legislation to include that and not just restrict it to law enforcement per se because I think the dangers are there.

 

      But clearly, this does not limit, in any way, shape, form one's ability to record. And I think on a balancing test, and when we look at all the other cases, this issue has not been addressed.

 

Stephen Klein:  Alexa, a little bit to Larry's point, is there a saving grace in the law by the requirement it's not a strict liability for recording within eight feet? The person, in fact—now, there may be some vagueness here—either received or has previously received a verbal warning. I don't know if there's a time limit on that one if you're one of the regular activists who regularly records police and the same officer can carry that one over for a few months. But otherwise, assuming it's in the moment you receive the warning, is that any kind of saving grace as far as narrow tailoring?

 

Alexa Gervasi:  No, absolutely not. I mean, first, we'll put aside the vagueness issue. Absolutely, they're going to have an unconstitutional vagueness problem with the previously warned, but the bottom line is still the same. You are still being prohibited from recording within eight feet of police activity, even if you are not interfering, and that is what is unconstitutional.

 

      I think, as a factual matter, it's just actually incorrect that you will always be able to record from outside of eight feet. When we look at the videos of both Bryan Garner and George Floyd, some of those videos were absolutely taken from closer than eight feet—an eight-feet distance. Some were further away; some were closer away, but we're presuming a lot about the condition. We’re presuming you have a camera that can zoom, that you've got your iPhone on you, or whatever the technology might be. We're presuming there's not a crowd. We're presuming that there's no structures in your way that would prohibit you from being able to get a view. As a factual matter, it's simply not true that you can always record from outside eight feet.

 

      And we know that the standard of "you may not interfere" is a workable standard when we're talking about recording police conduct because we've seen it play out in the Fifth Circuit. It's just one instance. So, for instance, in the Fifth Circuit, we saw a qualified immunity challenge where somebody was arrested for recording police officers. And in the Fifth Circuit, Judge Willet authoring—so certainly not one to lightly impose on a person's First Amendment right—said, "No, you were interfering. You did not have a constitutional right to be doing what you were doing" because that individual was repeatedly within the wingspan of the officer, getting in the officers' faces. Right?

 

      There was a factual determination; that is interfering. We know what that word means. We can do factual analyses to find that line and to take the easier route of, “we're going to put an objective eight-foot limit in just because it might make things easier,” is not a reason to do so, and again, it doesn't pass constitutional muster.

 

Stephen Klein:  I have to throw it out -- oh, I'm sorry, Larry. You want to respond?

 

Larry James:  Yeah. I think that part of this statute goes in and it incorporates the act of interference as many of the other legislative initiatives have done so that the question will become -- because the standard has not changed. It's pretty definitive, and I'll read it again. "Person who's not interfering with the lawful police action, including searching, handcuffing, or administering a field sobriety test. The occupant of a vehicle that is subject to police stop may record the encounter if the occupants are not interfering with the lawful police action."

 

      The one thing I've always said with police officers: We don't hire, we don't fire, we don't train. I think the proof here will be in the various academies as we look at these encounters, particularly as we've seen the protests go on around the country. If you're looking at a reality check when you're looking at Portland, Seattle, and the others, I mean, officers and people are on top of each other.

 

      And some of the issues we had to decide—for instance, here in Columbus—is, where is the line going to be drawn where you say, "We don't want you on the street?" And then the officers and individuals are on top of each other. And then, we had our chairman of the Congressional Black Caucus, our President of City Council, and a county commissioner ending up sprayed because no one respected boundaries.

 

      So I think this is a part about the objectivity of respecting boundaries in an objective standard where still, in spite of that, if the individual is not interfering, he or she will not have a criminal charge sustained.

 

Alexa Gervasi:  Steve, I know you want to say something. I just want to add one clarifying point to that really quickly. The piece that Larry's reading about not interfering, that is only if you are the subject of the police encounter. So only if you are the subject of the police encounter may you record as long as you are not interfering.

 

For everybody else, any bystander, it does not matter whether or not -- the standard is not whether or not you're interfering. The standard is whether or not you're within eight feet.  And so, I'm all for the "as long as you're not interfering, you may record," but the issue here is setting this line at eight feet, and that's actually really good evidence that it's overbroad. Right?

 

If you're the subject of the police encounter, you can record as long as you're not interfering, but if you're not, you cannot record if you're within eight feet. And I think that that is, on its face, evidence that the eight-foot rule is going to capture too many people who should not be captured and who are not actually interfering with police conduct.

 

Stephen Klein:  So, Larry, in looking at nationwide -- and I wonder -- there is an interesting, broad constitutional conundrum here that I’ve run into that, on one hand, if a court, be it the First Circuit—or the numerous circuits, as Alexa pointed out—that have addressed this issue, usually carve out as-applied exceptions to, say, broad recording restrictions, such as Oregon or Massachusetts. And these fall, usually, under audio recording laws.

 

Larry James:  Correct.

 

Stephen Klein:  What's interesting is, here, we're dealing specifically with video recording. Now, this is academic because most cameras that are recording video these days are also recording audio along with it, but I wonder, do you think that might save tailoring in some way? Because, as you pointed out, within eight feet—and I know Alexa disagrees—you can pretty much capture all the video you want, and since they're not restricting, under this law, audio recording, that kind of means -- it suggests you could have an iPhone in your pocket with the audio recording still within eight feet. Do you think that helps tailoring at all?

 

Larry James:  You know, I don't know. I think what we try to do -- we put on seminars every year, and we bring the lawyers who represent law enforcement. And the question is, are we implementing something that lessens the conflict between the public and law enforcement?

 

When we look at the video history and the First Amendment right of free speech and privacy, we've seen the court, whether cameras that are on the public -- there is no privacy anymore, so we've seen the court try to deal with these issues of privacy. I look at this -- kind of a similar practicality. Does it help us, does it improve us, does it give us a clear line of demarche, or does it provide an opportunity to be abused by law enforcement?

 

That's the way I would balance this test because, as we've seen the video cameras evolve, public scrutiny of cameras everywhere evolve, and how do we now decide what is a constitutional bad law, if you will? So I think the court is going to look at it, and they're going to balance it, and they may come back and split the baby.

 

They may say, "You need to go back and you need to clean this up a little bit—" as Alexa says, the question of the victim or the person that's the subject of this, versus the public at large. I go back to the fundamental -- and I've been safety director over law enforcement, and you try to say to your officers, "What is the standard that you are required to enforce? Is it one of subjectivity, trying to talk about these different criteria, or is it something very strict?"

 

Would we be more satisfied if we said four feet? Five feet? So I think this is probably as clear of a standard for the public to know and for law enforcement to know, and I think that's what it's about—the clarity of it.

 

Stephen Klein:  Alexa, a response? What do you think about four feet?

 

Alexa Gervasi:  Yeah, I think it's probably clear what I think about four feet. But, you know, I think that is a good point about this concern. Can the police abuse this test, right? Of course, we're not really in the world of a balancing test; we're in the world of strict scrutiny. But even if we were in the world of a true balancing test, that is actually a huge problem with this law.

     

      A police officer can put themselves within eight feet at any moment. They can force the violation of this statute, and I think that is a huge problem with this law. If a police officer does not want to be recorded or, let's say, they're tired of the same auditor coming around their patrol car—which I think we can all kind of have sympathy for, for those of us who watched auditor videos—all they have to do is take two big steps forward, and all of a sudden, the recorder has committed a criminal violation. And I think that that is a big concern with this law that should be addressed, especially if we're going to go into the world of trying to balance the potential for police abuse.

 

Stephen Klein:  We have had a few questions come in. I think they've mostly been answered in our cross-Q&A, so I do encourage people out there, our viewers, if you do have anything, please go ahead and type them into the Q&A box, not the chat box. Two distinct, just confusing things—the glories of Zoom.

 

      It's interesting. Now I'm riffing instead of off my written questions, which is always a terrible idea, but I do wonder, Alexa -- and it kind of goes back to Larry's point of -- we have, for example, I think Glik v. Cunniffe out of the First Circuit—one of the first bonafide, “Yes, you can record police.”

 

It's the quintessential -- guy was on Boston Common, a good distance away from the police, making the recording, and they throw in this exception of, "Well, yeah, but there could be --" and I think they even got this wrong. “There could be reasonable time, manner, place restrictions on a public forum like Boston Common.” And then, you take that, though, and incorporate it into a law, and suddenly, you've run into a content-based restriction because they're trying to accommodate—not restrict, but actually accommodate—what the court said.

 

And I wonder if—to Larry's point—do you think there's room here -- do you see this one as being facially invalid, or do you think the court might take an as-applied and want to do a case-by-case that, "Okay, if this is abused, we're going to continue with the line that there's a right to record police, and now this law is violating it in this circumstance," as opposed to, "No, we're going to do facial invalidity"?

 

Alexa Gervasi:  Yeah. I think it's interesting. I think it's going to, as always, depend on the temperament of the panel that this ends up before. I think the easiest way for the court to dispose of this law—if it wants to—but it doesn't want to get into a litmus test of whether or not eight feet is constitutional or not, is to strike it down for vagueness.

 

      I think that that's probably the most likely way if the court doesn't want to take this head-on. I think, other than that, it's going to have to be a facial overruling on your eight feet is a content base. Honestly, they might not say it. They might even determine that it's not content-based, but I think it's going to be a facial ruling.

 

Larry James:  Yeah. I think, when you look at Glik and it says "reasonable time, place, manner, restrictions," I think this goes to the heart of what we're talking about because it's pretty precise. When you talk about vagueness, I have a lot more confidence—and maybe that's because I come out of a law enforcement background—of something that's more definitive that doesn't abuse someone's right, and I don't see the vagueness as opposed to the obscenities laws. You know it when you see it. So it will be interesting, and I'm looking forward to reading the briefs.

 

Stephen Klein:  And, of course, I do believe, I think it was only a week ago, the ACLU, as Alexa mentioned, has brought suit against this.

 

Larry James:  Right.

 

Stephen Klein:  I do expect a litany of amici briefs, not that I'm sending any hints to my clients. Give it some thought.

 

So again, nothing in the Q&A, and I don't know if we -- I'd like to turn it over -- I know, Alexa, you opened for us, so why don't you start with closing? Well, actually, then a question comes in. Okay. Why is observing recording an activity considered a type of expression or speech that is protected? Pretty fundamental.

 

Alexa Gervasi:  Yeah.

 

Stephen Klein:  Start us off, Alexa.

 

Alexa Gervasi:  That's a great question. So it's the creation of speech. So first of all, I think we should back up. That observing -- you're allowed to be within eight feet of police conduct under this law. It only becomes a crime as soon as you hit “record” on your device. So it's only the recording that is the subject of this statute.

 

And the courts have recognized that recording is the creation of speech, and the creation of speech is protected just like speech itself because, if it wasn't, as the courts say, then the government could swim upstream and dam speech itself. So the creation of speech is protected just like speech itself. That's a great question.

 

Larry James:  And I agree that there's no question that we're talking about speech. You know, if you go a little bit further and you ask yourself, then why have the courts that have been faced with the issue of livestreaming, that you can't livestream police conduct and activity? And that's one that I think -- we have seen no cases that have denied a police officer or a department's right to say, "You will not be able to livestream in this situation."

 

      And I think that reasoning is, you're inviting potential trouble, and you're inviting people to come down. And so, the reasoning of this legislation, I think, we can argue is akin to that livestreaming prohibition, that it's about public safety. It's about both the public and an officer's safety.

 

Stephen Klein:  All right. I'll try this again. And now a question will come in, now that I ask, but why don't you wrap this up for us, Alexa?

 

Alexa Gervasi:  Yeah. So, at the end of the day, I think it's clear what this statute is doing. It is restricting First Amendment-protected activity, and it is doing it in a way that's overbroad. We know that because Arizona already makes it illegal to interfere with police activity. That is the narrow law that is necessary here and all that is required.

 

      We've seen today the different ways that we can recognize that this law is overbroad. Just mentioned one of them—the fact that you can stand, you can dance, you can wiggle around within eight feet of police officers. It only becomes illegal the second you take out your phone and hit that “record” button. And so, I'm really excited to see what happens with the ACLU's challenge to this law in the coming months and years as litigation goes. 

 

Larry James:  I think I would make the distinction between recording -- and you still have the other laws on the book that you may not interfere. So I don't think the filming is a triggering mechanism that takes someone outside the laws that prohibit interference with law enforcement.

 

I think the question becomes, in a very simple way, “What are we talking about here?” Are we limiting the public's right to record? Are we limiting the public's right to be at any different angle, whatever that angle is? And so, I don't see this, in any way, limiting. I don't see it, in any way, being vague.

 

Stephen Klein:  Alexa and Larry, thanks so much for joining us today. I really think this was a fantastic discussion, and again, thanks also to our audience for joining us. 

 

Larry James:  Thank you very much, everyone. Have a wonderful weekend, and may the Bucks beat the Irish.

 

Alexa Gervasi:  Thank you.

 

Larry James:  Thank you. Be well.

 

Stephen Klein:  Ryan, you're on mute.

 

Ryan Lacey:  First time for everything. It's never happened to me before. On behalf of The Federalist Society, I want to thank our panel for the benefit of their valuable time and expertise, and I want to thank our audience for joining us and for participating.

 

      We welcome listener feedback by email at [email protected], and as always, keep an eye on our website and your emails for announcements about upcoming webinars and other programming. Thank you all for joining us today. We are adjourned.

 

 

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