Democratic backsliding comes in many forms, some large and dramatic, others barely noticed. In this country, people have mounted frontal assaults on democracy’s foundations, and they have also taken smaller steps to chip away at individual rights and freedoms.
Last Friday, U.S. District Judge John Tuchi issued a preliminary injunction blocking the implementation of a new Arizona law that exemplifies the breadth and reach of those assaults. His decision is a reminder that preserving freedom depends on continuous vigilance and the willingness of both citizens and judges to stand up for it.
The Arizona law, which was due to take effect on Sept. 24, makes it a misdemeanor for any citizen to film police while they are conducting “law enforcement activity” on the public streets from closer than eight feet or at any time an officer tells them to stop.
The law specifies that such activity includes making arrests, questioning suspicious individuals, and dealing with emotionally disturbed people.
The bill’s sponsor, Republican State Rep. John Kavanagh, touted it as a police safety measure. He claimed that it was necessary to restrict where citizens could film law enforcement activity in order to keep officers safe from harm.
As Rep. Kavanagh put it, “Nobody walks up to a cop when he is questioning a suspicious person or arresting somebody and stands one or two feet away. Common sense says you’re asking for trouble.” His bill makes some exceptions for occupants of vehicles and those in enclosed structures on private property. They are permitted to film as long as they are not being arrested or searched.
And anyone who is in a car stopped by police or is being questioned is also allowed to record the interaction — unless an officer determines that the recording is interfering with “law enforcement activity” or the area is deemed unsafe for civilians.
When it was first introduced, Kavanagh’s bill made it illegal to record within 15 feet, but he subsequently changed it to bring it in line with to a 2000 United States Supreme Court decision that allowed eight-foot buffer zones between protesters and patients of abortion clinics.
Notably, Kavanagh was not dissuaded from pushing his proposal by a more recent Supreme Court ruling that such buffer zones infringe on the First Amendment.
That 2014 decision gave great latitude to anti-abortion demonstrators. It is not clear how the court would rule on a case involving the rights of people documenting police activities in order to hold them accountable. The sponsors of the Arizona law may have wagered that siding with the police would win favor from an increasingly conservative judiciary if it was challenged in court.
A suit doing just that was filed last month by the American Civil Liberties Union on behalf of a diverse group of Arizona news organizations. Those organizations claimed that the law would make it impossible for reporters and photographers to do their job, especially at large protests where the boundaries between police and journalists were constantly shifting.
Judge Tuchi, who was appointed to the bench by President Barak Obama, agreed with the ACLU and, in so doing, stood up for freedom of the press and of citizens.
His ruling is supported by guidance issued in 2012 by the U.S. Department of Justice “on the right to record police activity” that declared that “individuals have a First Amendment right to record police officers.” It also comes on the heels of a July 2022 decision by the Tenth U.S. Circuit Court of Appeals in the case of a YouTube journalist and blogger who claimed that a police officer in a Denver, Colo., suburb blocked him from recording a traffic stop.
Following a series of decisions made over the last two decades by six other Circuit Courts of Appeal, the Tenth Circuit held that filming police is a “clearly established” First Amendment right. It noted that the “right to film the police falls squarely within the First Amendment’s core purposes to protect free and robust discussion of public affairs, hold government officials accountable, and check abuse of power.”
Of course, the presence of bystanders with their smartphone cameras in hand cannot always prevent police abuses.
Legal scholars have rightly warned of the dangers of adopting an uncritical attitude toward film and video evidence. Boston University Professor Jessica Silbey cautions that we should not “naively treat filmic evidence as a transparent window revealing the whole truth, as a presentation of unambiguous reality.”
Yet without film and video documentation, allegations of police abuse of power — especially against people of color — would devolve into “he said/they said” contests. In such contests, the police have almost always prevailed.
Since the infamous 1991 Rodney King incident in which Los Angeles police officers repeatedly beat a docile King after a traffic stop, film and video have played a key role in bringing such abuses of power to light. They have proved valuable even when, as in the King case itself, they have not been decisive in helping bring officers to justice.
Cellphone video helped convince the New York Police Department to fire Officer Daniel Pantelo for the police chokehold that killed Eric Garner in 2014
In 2020, citizen video of George Floyd’s murder helped to change the national conversation about policing and fueled nationwide protests and reform movements. Unlike in the King case, it also played a crucial role in convicting Officer Derek Chauvin for Floyd’s killing.
And it is not coincidental that the Arizona law was passed following release of a video of a police officer repeatedly beating an apparently homeless person on the ground.
The Arizona law also came after the announcement of a U.S. Department of Justice investigation of the Phoenix police. Among other things, the DOJ is investigating whether the police target for mistreatment people with disabilities and homeless people living on the streets.
While Arizona was legislating limits on citizens filming police, in authoritarian China — which is hardly a good model for this country to follow — officials recently came to recognize its utility.
Chinese President Xi Jinping’s government not only confirmed citizens’ right to videotape police making arrests, but began to actively encourage it without restrictions of the kind Rep. Kavanagh proposed. As the Chinese Ministry of Public Security said at the time: “Police should accept public monitoring and get used to implementing the law in front of cameras.”
Thanks to Judge Tuchi, what is now even happening on Beijing streets can continue on the streets of Phoenix and other Arizona cities and towns.
Austin Sarat (@ljstprof) is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College. He is author of numerous books on America’s death penalty, including Gruesome Spectacles: Botched Executions and America’s Death Penalty and Lethal Injection and the False Promise of Humane Execution. The views expressed here do not represent Amherst College.