The House passed a bill today to give citizens a clear right to photograph or record events in public spaces or in private spaces where they are lawfully present. The bill, which already passed the Senate, will head to the governor’s desk.
To use the classic example, the bill would expressly prohibit a police officer from attempting to stop a citizen from recording or photographing an arrest or other police action — and make the state liable if the officer violated someone’s right to record. Unfortunately, cops sometimes have a bad track record when it comes to respecting the First Amendment rights of photographers, journalists, and citizen observers.
The bill explicitly prohibits law enforcement from: 1) trying to stop citizens from photographing or making recordings; 2) deleting electronic data or other information the citizen recorded unless it’s considered contraband; 3) seizing or confiscating a recording device unless it’s being used for the commission of a crime or for some other legitimate law enforcement purpose.
And it has teeth: the state would waive sovereign immunity if the law was violated (punitive damages are not provided by the bill).
The bill covers various reasonable exceptions: the right to record would not extend to violations of privacy; the bill would not apply to medical facilities or publicly funded schools; private property owners could still restrict or prohibit recording on their property. Plus other exemptions relating to ensuring that the bill does not extend the right to record to people committing a crime, violating copyright law, creating a risk to physical safety, circumventing established procedures that require permission or payment to record, etc.
The bill, sponsored by Rep. Richard Womack, was pushed by an unusual pair: Dan Greenberg, the conservative former state legislator and president of the right-wing Advance Arkansas Institute, and civil rights attorney and Democratic state representative John Walker.
The issue is personal for Walker, who co-sponsored the bill. In 1998, Walker was driving with his daughter and two grandchildren and stopped to observe a traffic stop of young black men by white Pine Bluff police officers. Walker parked and walked across the street to observe the encounter. An officer walked over and asked him what he was doing and Walker stated that he was watching “Pine Bluff’s finest in action.” Walker was arrested for “obstructing governmental operations” and then, according to Walker’s testimony, the officer “drove Walker at varying speeds over dark wooded roads to the police station.” Walker was never charged and successfully sued the city of Pine Bluff.
Over at his blog, Greenberg has lots of examples of police misbehavior toward journalists, photographers, and others in gross violation of their First Amendment rights. This bill would expressly ban that practice and make the state liable. The waiving of sovereign immunity appeared to be the chief concern of Attorney General Dustin McDaniel, who successfully fought against a version of this bill in 2013. But here’s the thing: perhaps the state should feel some pressure to train its law enforcement officers not to engage in grotesque and un-American violations of the rights of citizens they’re sworn to protect. Law enforcement officers, after all, are well aware that bad behavior may continue if it goes unpunished.