Tuscon and the First Amendment

It’s been floating around all weekend, and early this evening the Arizona ACLU announced a flyer campaign.  Apparently they’re hoping for protests, if America’s protesters can fit anything else into their busy schedule.  Our money’s on the whole story getting lost in the shuffle; the public has gotten pretty protest-weary — but we’ll see what happens.

On April 21st, during one of a series of (interminable and mind-numbingly boring -Ed.) City Council meetings that Tuscon has been holding online (and recording for public view and comment) due to the COVID-19 lockdown, the Council discussed the urgent need for an ordinance to prevent members of the general public from filming police investigations from inside crime scenes.  One was proposed, discussed, and passed after spirited discussion.

The Arizona ACLU has raised specific objections on their Facebook page, which I’ll summarize:

– The ordinance permits the police to temporarily restrict areas to public access during ongoing events or crime scene investigations.  This has First Amendment implications, as it could easily be abused.
– The ordinance was passed without any reasonable period of public comment.

These are certainly both reasonable.  On the face of things, it is perfectly acceptable for citizens to object on these grounds.

The reality, however, is rather more complex — as reality is wont to be.

Apparently there is an organized group that understands Arizona law well enough to know that they could cross crime-scene tape in certain areas.  Most recently, they’ve been filming traffic stops, posting video of their activists interfering in a pay-per-click environment.  TNFN staff has accessed their websites and channels, and tried our damnedest to make sense of their intention in so doing.  Best we can tell is, they aren’t there to keep the police honest; instead, it seems they’ve been trying hard to provoke an over-reaction so they can sue someone.  In the mean while, they’re raking in cash.  (This is why we can’t have nice things. -Editor)

Due to the sensitive nature of the content, TNFN won’t link to any of the videos.  (I urge you to resist looking.  It’s pretty horrific, and I say this having recently watched an elderly man receive a concussion after interacting with a line of riot cops. -Editor)  Suffice it to say that these people are behaving in a way that would certainly get them arrested in any major city.

To be clear:  In most states, the police are fully authorized to establish a crime scene, and to arrest anyone who violates it.  In Arizona, municipal forces can only do so under city ordinance.  Most cities have such an ordinance already; all of these ordinances that we’ve examined were written with less evident concern for protecting people’s First Amendment rights.  This is not an extraordinary law in any way, shape, or form.  It’s perfectly normal, and laws like it are accepted by the majority of America as a reasonable concession.

There were objections raised in the Council meeting, that the ordinance as written might give officers excessive latitude in establishing boundaries and restricted zones.  The text was reviewed, however, and it doesn’t appear to.  Mention was also made by three Council members and Chief Magnus of the need to protect First Amendment rights.  I’ll let one of them explain what they did:

“The Ordinance also expressly codifies a person’s right to record police activities that take place in public. Let me repeat that – it doesn’t just recognize that right, it puts it into our Code.  Ensuring someone’s right to film police activities is very important to me and I expressed that during the meeting.”
– Councilwoman Nikki Lee

Due to the present situation, mention was made of the need to bypass the citizen advisory board, which is unable to meet due to the COVID-19 crisis.  The matter was deemed urgent enough to pass on an emergency basis, with an established review period of a year.  The City Attorney and Chief went out of their way to express that objections could be addressed at any time regardless, but that annual review is standard.  More to the point, the Chief clarified that any arrest under the new law would be subject to strict review at multiple levels — including the Board, if they wished — before any prosecution would take place.

Given these safeguards, the ordinance was passed 7-0 and immediately became law.

With respect to the second objection raised by the ACLU:  The full text of the proposed ordinance was available in advance on the posted agenda for the meeting, with the standard window for public comment.  The Arizona ACLU was notified in advance of the council meeting.  The mere fact that these events and documents are mind-numbingly boring does not in and of itself constitute legitimate grounds to object to them.  To do so might even have First Amendment implications.

Bottom Line:  The Not Fake News has reviewed this complaint and found it virtually without foundation.  Here’s the caveat:  While independent and without an agenda, we’re also very small, and subject to the same human failings anyone else is.  Nobody has set us up as an arbiter of morality.  You should look at the facts and make up your own mind — and if you disagree, let us know — politely and civilly.

As police departments go, Tuscon has a pretty decent one.  They’ve had some trouble in the past, but their training and deportment are, if not perfect, certainly better than most.  They have long held a “community policing” model, with an open structure and a highly active civilian review board.  Officers get regular refresher training on civil rights and have been severely penalized for what would in a civilian be minor or even negligible offenses — which is appropriate, as the police are in a position of power.  Most importantly, the department has already adopted all eight of the “Eight Can’t Wait” policies recommended by Campaign Zero’s Use Of Force Project.

Of all departments to protest, this one would be among the last on our list.  They are actively working to improve themselves in what appear to us to be honest, good-faith, and transparent efforts.  We should not discourage this in anyone, and certainly not Tucson P.D.

The Not Fake News is aware that there is profound dissatisfaction with our methods of policing in this country.  We have long held these very sentiments, and we have specific recommendations.  We urge the interested reader to review the following articles:

It’s Not The Cops

Stop The War On Drugs



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