TALLAHASSEE, Fla. — Recognizing the need for the government to strike that necessary yet delicate balance between liberty and safety, The Rutherford Institute has concluded that Florida’s “no go zone” law, which would criminalize approaching or remaining within 25 feet of a police officer or other first responder after having been warned not to approach, fails to strike that necessary balance.
In a letter to Governor Ron DeSantis, Rutherford Institute attorneys warn that Senate Bill 184, which was passed by the Florida legislature and awaits DeSantis’ signature, is unnecessary for law enforcement safety and, if signed into law, could give police broad discretion to abuse the law and prevent individuals from exercising their constitutional right under the First Amendment to record police conduct in public.
“Americans should be able to record their interactions with police without fear of arrest, assault or being subjected to harassment or intimidation tactics,” said constitutional attorney John W. Whitehead, president of The Rutherford Institute and author of Battlefield America: The War on the American People. “Citizens who exercise their First Amendment right to film police in public serve as watchdog reminders to police that, as public servants, they are accountable to ‘we the people.’”
Florida Senate Bill 184, which awaits the governor’s signature or veto, would criminalize approaching or remaining within 25 feet of a police officer or other first responder with an intent to “impede or interfere,” threaten physical harm, or cause “substantial emotional distress” in the first responder after having been warned not to approach. An offense is classified as a second-degree misdemeanor which can carry up to 60 days in jail and a fine of up to $500. In their legal analysis of the law, Rutherford Institute attorneys note that SB 184 is unconstitutionally vague and unnecessarily redundant (current laws already protect law enforcement against obstructions of justice); could chill lawful First Amendment activities; undermines the right to record police activity, which is a protected form of news gathering; deters civilian “journalists” from performing a vital service in ensuring transparency and accountability; and could give rise to further retaliatory behavior by law enforcement officials. Moreover, the courts have recognized that the First Amendment protects the right to gather information about what public officials do on public property. In fact, every circuit court which has considered the issue, including the First, Third, Fifth, Seventh, Ninth, Tenth, and Eleventh Circuit Courts of Appeal, has found that the right to film the police was clearly established, with the Tenth Circuit saying it was “beyond debate.” Over twenty years ago, the Eleventh Circuit, which covers Florida, held that civilians have a First Amendment right to record the police because “the First Amendment protects the right to gather information about what public officials do on public property.” A somewhat similar law in Arizona was recently struck down as unconstitutional by a federal court. Warning that SB 184 must at least provide a clear exception for civilians who are observing or recording police conduct so that it cannot be interpreted too broadly whereby police officers would have wide discretion in making illegitimate excuses to remove or arrest onlookers who are merely observing or filming police conduct, Rutherford Institute attorneys are calling on DeSantis to protect the First Amendment rights of citizens and have the Florida legislature revisit the bill with an eye toward addressing its troubling shortcomings.
The Rutherford Institute, a nonprofit civil liberties organization, provides legal assistance at no charge to individuals whose constitutional rights have been threatened or violated, and educates the public on a wide spectrum of issues affecting their freedoms.