A resident of Gary, Indiana, spent two days in jail after filming a viral video of a local cop arresting a woman at a gas station in 2020. But just weeks later, prosecutors dropped the charges of resisting law enforcement against him, and the officer who arrested him was suspended, investigated, and eventually fired.
While the local police chief publicly said his officers should know they’ll be filmed on the job, not everyone understands that the courts have repeatedly upheld civilians’ First Amendment right to record the cops, with few exceptions. Over the last few months, Republicans in several states have introduced legislation—and in some cases, passed it—that could ultimately punish people for recording or publishing images or video of the police.
Lawmakers told VICE News the bills and laws are meant to protect officers' safety and privacy—not infringe on civilians’ rights. But experts still worry the efforts will be used to crack down on people’s ability to use their cellphones to hold police accountable.
“The real concern is, whereas these bills are presented as a shield to protect officers' safety, we worry that it's going to be used as a sword against anyone who's got a camera,” Mickey Osterreicher, an attorney for the National Press Photographers Association, told VICE News.
In February, Arizona state Rep. John Kavanagh, a Republican, proposed a bill that would criminalize filming the police from closer than eight feet away and require someone to get the officer’s permission, even if they’re on private property. And even then, an officer could still order that person to stop recording and leave the area.
Violating that proposed law would be a petty offense for most people without a criminal history, punishable by a $300 fine. But for anyone with a prior conviction, the crime would be a Class 3 misdemeanor, punishable by up to 30 days in jail and a $500 fine.
“This is about preventing violence and misunderstandings, preventing the destruction of evidence, and preventing police officers from harm,” Kavanagh told the Arizona Mirror about the purpose of his legislation.
And Arizona House Bill 2319 has progressed: A month after its introduction, the state House passed it along party lines, with 31 Republicans voting in favor and 28 Democrats against. The state Senate Judiciary Committee has also voted in favor of the bill, which now goes to a full vote in the Senate sometime later this year.
In general, civilians can record the cops as long as they’re not interfering with police business. Over the last 25 years, the first, third, fifth, seventh, ninth, and 11th district U.S. Court of Appeals have all upheld filming the police as a constitutionally protected form of expression, like photography, as it promotes the public’s right to access information about public officials.
Although earlier cases ruled on a civilian’s right to record in a public place, two cases have become the most frequently cited specifically regarding filming the police. In Smith v. the City of Cumming in 2000, police officers in Cumming, Georgia, prevented a couple, who said the officers were harassing them, from recording their interaction. And in Glik v. Cunniffe in 2011, a Boston man sued police for arresting him for recording them during an arrest that turned violent, and charged him for illegal wiretapping, disturbing the police, and aiding the escape of a prisoner.
“We worry that it's going to be used as a sword against anyone who's got a camera.”
Given the opportunity to rule on filming the police for the first time in 2021, however, the Supreme Court declined to hear Frasier v. Evans—despite 45 organizations, including the Reporters Committee for Freedom of the Press, petitioning the justices to weigh in. The case involved a man named Levi Frasier who recorded cops battering a suspect and pushing a pregnant woman to the ground. When the cops caught Frasier documenting the encounter, they confiscated his tablet and deleted the video.
While Arizona is still grappling with passing its proposal, laws that could threaten the right to film the police have passed in other states. As of last April, Oklahoma has an “anti-doxing” law to prevent an officer’s personal information, which could include video badge numbers, patrol car license plates, and other identifiable information, from being released to the public. And Florida’s 2021 anti-riot law added “cyber intimidation by publication” as a punishable offense for anyone who publishes an officer’s information online with the intent of harassing them.
Much like Rep. Kavanagh in Arizona, lawmakers say these bills are necessary to ensure law enforcement can securely perform their duties without being targeted by those who would harm them or their families or having their attention pulled away by bystanders during potentially dangerous encounters.
“If you’re videotaping at all, you don’t need a badge number,” Oklahoma State Sen. David Bullard, the Republican who authored HB1643, told VICE News. “If you’re filming something at the time of an incident, a department is going to know what officer is involved with that, not a problem, especially if you capture the officer’s face. There’s no reason to get up close to a vehicle or up to the officer. That’s not required.”
As a former reserve deputy and corrections officer, Bullard knows first-hand how important it is for law enforcement to maintain focus. He said his anti-doxing bill aims to ensure they can while also making sure the families of these officers aren’t threatened by anyone.
“I’m for the people having the right to film, I’m for them making sure everybody is protected, holding everything accountable, and transparency,” he continued.
Florida state Rep. Juan Fernandez-Barquin, the Republican author of Florida’s HB1 anti-riot bill, had a similar motivation for the “cyber intimidation by publication” portion of his bill.
“‘Harass’ has a specific definition that requires the person’s actions to serve no legitimate purpose,” he told VICE News.“To violate the law, a person’s threat or harassment must put the victim in reasonable fear of bodily harm—not just annoy the person. This statute is narrowly tailored to prevent individuals with bad motives from ‘doxing’ someone.”
Regardless of lawmakers’ intention, Adam Schwartz, a senior staff attorney for the Electronic Frontier Foundation, says he’s skeptical of how these laws will be used. The language leaves room for situations where police can challenge a person’s right to record through indirect means.
“For example, an officer can use the new stratagem of not going after the initial recording of a situation but the subsequent publication of it because of what appears in that video,” Schwartz said. “That is highly problematic.”
Even if someone who records a police encounter had no intent of harassing the officer, it doesn’t mean they couldn’t be charged. Much like yelling “Fuck you!” at the cops, which the courts have also ruled is constitutional, people still get arrested.
Often, however, nothing comes from these arrests. In July 2021, plainclothes NYPD officers beat and pepper-sprayed a man recording an arrest in a subway station before leaving him with a summons. The charge was eventually dropped, according to the New York Daily News. And last year, the Connecticut American Civil Liberties Union helped a man who was arrested for filming a police station file a federal lawsuit accusing officers of violating his First Amendment rights.
The fact that these arrests keep happening shows just how misunderstood people’s right to record the cops is, especially among police themselves. Even in states like New York, where the right to film the cops is established in the district’s court of appeals as well as by state law, top elected officials like NYC Mayor Eric Adams have criticized people filming the cops.
"If your iPhone can't capture that picture with you being at a safe distance, then you need to upgrade your iPhone. Stop being on top of our police officers as they're trying to do their jobs," Adams said. The mayor noted that it’s not what happens all the time, but a majority of the time.
Since they can’t just destroy people’s cameras anymore, cops have also found crafty and subtle ways to avoid being recorded. One of the most recent—and bizarre—attempts involves playing popular songs out loud as people film them in hopes of triggering internet filters focused on copyright violations that would prevent the video from being uploaded to services like Twitter and YouTube, where they can go viral.
“Cops have stood in the sightlines of cameras or shined lights to block what it’s capturing,” Schwartz said.
As for Arizona’s bill, it continues to face opposition, even as it moves closer to Gov. Doug Ducey’s desk. Osterreicher, a former journalist and reserved sheriff’s deputy, wrote a letter earlier this month to the Arizona State Judiciary committee asking that they withdraw HB2319 from consideration. The letter was sent on behalf of two dozen news organizations, including the National Newspaper Association, the Society of Professional Journalists, and the Freedom of the Press Foundation.
“It's about protecting the right of the public to be informed about things, and the perfect example of that is Darnella Frazier, who stood as a 17-year-old, silently held her camera and reported the death of George Floyd,” Osterreicher said. “But for that video, we may not have realized what actually happened there.”
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