Arizona Broadcasters v. Brnovich
Arizona Broadcasters v. Brnovich
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6 IN THE UNITED STATES DISTRICT COURT
7 FOR THE DISTRICT OF ARIZONA
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9 Arizona Broadcasters Association, et al., No. CV-22-01431-PHX-JJT
10 Plaintiffs, ORDER
11 v.
12 Mark Brnovich, et al.,
13 Defendants.
14
15 Before the Court is Plaintiffs’ Motion for Preliminary Injunction (Doc. 24), to which
16 Defendant Mark Brnovich, in his capacity as Attorney General for the State of Arizona,
17 filed a Response in the form of a Notice of Non-Opposition (Doc. 29). Defendants Rachel
18 Mitchell, in her capacity as Maricopa County Attorney, and Paul Penzone, in his capacity
19 as Maricopa County Sherriff, filed a Notice Asserting their Status as Nominal Defendants,
20 taking no position on Plaintiff’s Motion. (Doc. 32.) Subsequently, Plaintiffs filed a Reply.
21 (Doc. 37.) On September 9, 2022, the Court held a hearing on Plaintiffs’ Motion for
22 Preliminary Injunction. For the reasons set forth below, the Court grants Plaintiffs’ Motion
23 for Preliminary Injunction.
24 I. BACKGROUND
25 On June 23, 2022, the Arizona Legislature enacted HB2319, codified at A.R.S.
26 § 13-3732. HB2319 makes it “unlawful for a person to knowingly make a video recording
27 of law enforcement activity if the person making the video recording is within eight feet”
28 of the activity and has been directed to stop recording by law enforcement. A.R.S.
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1 Fordyce v. City of Seattle, 55 F.3d 436, 439 (9th Cir. 1995) (recognizing that an individual
2 videorecording policing of protest was “exercising his First Amendment right to film
3 matters of public interest.”)). The United States Supreme Court has also recognized a right
4 to gather news. Branzburg v. Hayes, 408 U.S. 665, 681 (1972). Recording video of police
5 officers performing their duties and distributing the video to the public is a news-gathering
6 activity—it serves the Public’s First Amendment right to “receive information and ideas.”
7 Richmond Newspapers v. Virginia, 448 U.S. 555, 576 (1980) (citation omitted); First Nat’l
8 Bank of Boston v. Bellotti, 435 U.S. 765, 783 (1978) (“the First Amendment goes beyond
9 protection of the press and the self-expression of individuals to prohibit government from
10 limiting the stock of information from which members of the public may draw.”).
11 Because there is a clearly delineated right under the First Amendment to record law
12 enforcement activity, Plaintiffs next argue that HB2319 is a content-based restriction and
13 is therefore subject to strict scrutiny. (Doc. 24 at 10.) The Court agrees. HB2319 singles
14 out the activity of video recording law-enforcement activity, and in doing so, it “singles
15 out specific subject matter for differential treatment.” Reed v. Town of Gilbert, 576 U.S.
16 155, 166 (2015). Such restrictions are subject to strict scrutiny. Barr v. Am. Ass’n of Pol.
17 Consultants, Inc., 140 S. Ct. 2335, 2346 (2020) (explaining that “[c]ontent-based laws are
18 subject to strict scrutiny,” while “content-neutral laws are subject to a lower level of
19 scrutiny”).
20 For a regulation subject to strict scrutiny to be upheld, it must be “necessary to serve
21 a compelling state interest” and “narrowly drawn to achieve that end. Perry Educ. Ass’n v.
22 Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (1983). Strict scrutiny is “an exacting test”
23 requiring “some pressing public necessity, some essential value that has to be preserved;
24 and even then the law must restrict as little speech as possible to serve the goal.” Turner
25 Broad. Sys., et al. v. Fed. Commc’n Comm’n, et al., 512 U.S. 622, 680 (1994). HB2319 is
26 neither necessary to serve a compelling state interest, nor is it narrowly drawn.
27 Ostensibly, the aim of HB2319 is to prevent interference with or distractions of law
28 enforcement officers. (Doc. 24 at 13.) However, Arizona already has other laws on its
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1 books to prevent interference with police officers. See, e.g., A.R.S. §§ 13-2402, 13-2404.
2 Thus, HB2319 is not “necessary.” Additionally, HB2319 is not narrowly tailored—it is
3 simultaneously over-inclusive and under-inclusive. If the goal of HB2319 is to prevent
4 interference with law enforcement activities, the Court fails to see how the presence of a
5 person recording a video near an officer interferes with the officer’s activities. See Glik v.
6 Cunniffe, 655 F.3d 78, 84 (1st Cir. 2011) (“peaceful recording of an arrest in a public space
7 that does not interfere with the police officers’ performance of their duties is not reasonably
8 subject to limitation”). This reflects HB2319’s over-inclusivity. Further, as Plaintiffs note,
9 HB2319 prohibits only “video recording” and does not address audio recordings or
10 photographs taken from the same distance or device, nor does it address persons who may
11 be using their mobile phones for other purposes, such as texting. (Doc. 24 at 15.) As
12 Plaintiffs correctly point out, this makes HB2319 impermissibly under-inclusive,
13 demonstrating that the law’s purpose is not to prevent interference with law enforcement,
14 but to prevent recording.
15 For the reasons above, the Court finds that the first Winter factor is satisfied.
16 Because Plaintiffs have shown that HB2319 cannot withstand strict scrutiny, the Court
17 does not consider their arguments that HB2319 fails to withstand scrutiny under a time,
18 place and manner analysis, or that HB2319 is void for vagueness, although Plaintiffs likely
19 prevail on these arguments as well. (Doc. 24 at 16-22.)
20 B. Plaintiffs Will Suffer Irreparable Harm Absent an Injunction
21 The second Winter factor requires the moving party to show that it likely to suffer
22 irreparable harm in the absence of preliminary relief. 55 U.S. at 20. The Court finds that
23 this factor is met. “The loss of First Amendment freedoms, for even minimal periods of
24 time, unquestionably constitutes irreparable injury” for purposes of the Court’s preliminary
25 injunction analysis. Elrod v. Burns, 427 U.S. 347, 373 (1976). As discussed supra, HB2319
26 infringes on a First Amendment right. It follows that Plaintiffs will suffer an irreparable
27 injury if the law takes effect. Thus, the second Winter factor militates in favor of injunctive
28 relief.
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1 320 F.3d 906, 919 (9th Cir. 2003). The court must make a finding as to the surety bond
2 amount it considers proper. Johnson v. Couturier, 572 F.3d 1067, 1086 (9th Cir. 2009).
3 Here, the Court finds that no bond is necessary.
4 IT IS THEREFORE ORDERED granting Plaintiffs’ Motion for Preliminary
5 Injunction (Doc. 24.) The Court enjoins the enforcement of A.R.S. § 13-3732 pending
6 further order.
7 Dated this 9th day of September, 2022.
8
9 Honorable John J. Tuchi
United States District Judge
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