‘Buffer-zone’ restrictions on recording police are unnecessary and unconstitutional

Anyone today, armed with only a smartphone, can help hold police accountable when officers sometimes cross the line between enforcing the law and breaking it. From the 1991 video taken on an apartment balcony by plumber George Holliday showing Los Angeles police officers beating Rodney King to the 2020 sidewalk-captured video by 17-year-old Darnella Frazier exposing George Floyd’s murder by Minneapolis police officer Derek Chauvin, the power —both emotional and evidentiary — of citizen-recorded video is undeniable.

Despite that reality, some states are adopting buffer-zone laws mandating that citizens stand back a minimum, fixed number of feet while recording police. Whether the motive behind these measures is laudable (officer safety) or political (chumming support from law-and-order voters), the statutes are not only unnecessary but also perhaps unconstitutional. Buffer-zone laws may violate the First Amendment right to record officers performing their duties in public places like streets, sidewalks and parks.

To wit, Arizona Attorney General Kris Mayes acknowledged on July 12 in a federal court stipulation that a Grand Canyon State statute that criminalizes recording police activity within eight feet of the action violates the First Amendment’s “clearly established right to record law enforcement officers engaged in the exercise of their official duties.” The statute was signed into law a year ago by former Gov. Doug Ducey.

Mayes’s admission, along with the filing of a proposed order permanently blocking the statute’s enforcement, stems from a lawsuit filed last August by a coalition of news organizations and the ACLU of Arizona. Upon the lawsuit’s filing, the ACLU’s Jared Keenan asserted that “Arizona wants to criminalize the public’s most effective tool for shining a light on police violence.”

Attorney General Mayes’s proposed order, which now awaits U.S. District Judge John J. Tuchi’s approval, would settle the case of American Broadcasters Association v. Mayes. Judge Tuchi earlier had granted a preliminary injunction temporarily stopping the statute’s enforcement.

The settlement was hailed by River City Newspapers, owner of several Arizona newspapers. Dubbing the outcome “a reminder that safeguarding the First Amendment is essential in protecting the integrity of our democracy,” the newspaper group asserted that “[w]ithout the ability to record and share what occurs in public spaces, we risk the erosion of trust in our institutions and the potential for unchecked abuse of power.”

Arizona is not alone in adopting buffer-zone statutes. Indiana embraced one that took effect earlier this month. It criminalizes recording video within 25 feet of police activity — more than five yards further away than Arizona’s now ill-fated statute. A supporter of the Hoosier State measure stated it would “improve officer and public safety by preventing distractions that potentially could give criminal suspects an opportunity to pull out a gun or attempt to flee from police.”

Balancing interests between officer safety and police accountability is not always easy. Yet states including Indiana and Arizona already have laws on the books that criminalize interfering with or obstructing officers performing their duties. In short, the laws are largely unnecessary.

Furthermore, the First Amendment stands in their way. Nearly all of the nation’s federal circuit courts — the 1st, 3rd, 4th, 5th, 7th, 9th, 10th and 11th — now recognize that citizens possess a constitutional right to record police publicly doing their jobs. No federal appellate court that has addressed the right has rejected it. Judicial acknowledgment of this right is paramount, as I contended elsewhere, “to safeguard the watchdog and truth-seeking functions performed today by citizen-journalists.”

Or, as the 1st Circuit explained more than a decade ago in recognizing the right to record police, the “proliferation of electronic devices with video-recording capability means that many of our images of current events come from bystanders with a ready cell phone or digital camera rather than a traditional film crew.”

In February, the U.S. Court of Appeals for the 4th Circuit concluded in Sharpe v. Winterville Police Department that the First Amendment not only protects recording police officers but also safeguards “livestreaming a police traffic stop.” In reaching that outcome, the Fourth Circuit stressed that “[r]ecording police encounters creates information that contributes to discussion about governmental affairs” and that encounters with police are “matters of public interest.”

That echoes the earlier sentiment of the 11th Circuit that “[t]he First Amendment protects the right to gather information about what public officials do on public property, and specifically, a right to record matters of public interest.” In short, evolving technologies require evolving First Amendment principles.

Importantly, the First Amendment right to record police in public spaces is not unlimited. It doesn’t protect interfering with police and, as the 10th Circuit wrote in 2022, it “is subject to reasonable time, place, and manner restrictions.” What is “reasonable” in terms of how far back officers may keep people when recording them is necessarily a fact-specific inquiry. It might be influenced by factors such as the venue, the nature of the police activity and the number of people nearby. The First Amendment’s built-in reasonableness approach embraced by the federal courts thus affords the flexibility to balance the competing interests that fixed buffer-zone laws like those in Arizona and Indiana cannot accommodate.

In sum, lawmakers should resist the temptation to adopt rigid buffer-zone statutes. They amount to unnecessary legislative overkill, raise profound First Amendment problems and hinder the public’s ability to hold police accountable when they act unlawfully.

Clay Calvert is nonresident senior fellow at the American Enterprise Institute and professor emeritus at the University of Florida in Gainesville. Specializing in First Amendment and media law, Calvert has published more than 150 law journal articles on topics affecting free expression, and he is lead author of Mass Media Law (22nd ed. 2023, McGraw Hill).