State Representative Jason Villalba, a Dallas Republican, is close to a lot of cops. The best man in his wedding was a police officer. So is his uncle and various other friends and family members. So when his friends in the law enforcement community suggested the creation of a 25-foot "halo" around police operations to keep increasingly ubiquitous citizen-photographers from interfering with their duties, he filed a bill -- HB 2918 -- to do exactly that. It would create a separate, 100-foot halo for any photographer carrying a handgun.
Anyone caught filming within the 25-foot radius could be prosecuted for a Class B misdemeanor, punishable by up to 180 days in jail and a $2,000 fine. For gun-carriers who step within 100 feet, it would be a Class A misdemeanor, punishable by up to a year in jail and a $4,000 fine.
"I thought that was reasonable, 25 feet," Villalba says. "I measured that out in my office. It didn't seem to be terribly disruptive. I'm not trying to limit the ability to film. I don't have any problems with that."
Civil libertarians, who have been howling in protest since the bill was filed Tuesday, beg to differ. They view the measure as an attempt to stifle free speech and shield from accountability police officers who overstep their authority. They're also uncomfortable with a provision that exempts from prosecution members of the "news media," which is defined rather archaically to include only FCC-licensed radio and TV stations and general-interest newspapers and magazines. Internet-only news sites, bloggers, citizen-journalists, and activists would not be covered. It took Frisco libertarian activist Brett Sanders all of .02 seconds to reference the Third Reich:
.@JasonVillalba 'a little' as in 100ft if armed & not a member of the dinosaur media? The NAZI party called they want their policies back
— Brett Sanders (@brettsanders) March 12, 2015
Noted East Dallas gadfly Avi Adelman wisely steered clear of Nazi analogies but is also deeply uncomfortable with the bill. He has been hovering around crime scenes and photographing cops for decades. "My rule is, if I'm close enough to hear too many details, I'm too close," Adelman says of how he decides to decide where to photograph. "I stay on the public right of way on the sidewalk and try to avoid using a flash," which might be a distraction. He holds his tongue, too, unless the cops try to chase him off or otherwise piss him off.
But even if other photographers aren't so careful, Adelman says officers already have the tools they need to keep them from interfering with police work. "That's what yellow tape is for," he says. And if the police tape doesn't do the trick, the offending person can always be charged with interfering with public duties.
Villalba says cops often can't spare the time or attention to put up yellow tape or ask a photographer to step back. "They have the ability to say, 'Step back, please don't interfere,' but a lot of times these situations are in the heat of a law enforcement officer doing their jobs," he said. With HB 2918, "We're just trying to create enough separation, enough space so that officer feels comfortable."
Opponents of the bill have questioned its constitutionality, citing multiple federal appellate court rulings that filming police officers is a right protected by the First Amendment. In particular, they point to Glik v. Cunniffe, in which a man in Boston faced a wiretapping charge for using a cell phone to record video of police making an arrest. The 1st U.S. Circuit Court of Appeals ruled in 2011 that he had a right to record the cops and that his arrest was unconstitutional.
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But other appellate courts in other jurisdictions have ruled that it's "unclear" if there's a First Amendment right to photograph cops, and both the U.S. Supreme Court and the 5th U.S. Circuit Court of Appeals, which includes Texas, are silent on the issue. And even if there is a clearly established right to record cops, would a no-photo halo around cops violate it? Villalba contends that 25 feet is a reasonable distance and that his bill sufficiently narrow to pass constitutional muster, but the question has yet to be addressed by the courts.
This is Villalba's second foray into hot-button, are-you-really-sure-you-want-to-touch-this issues. In December, he proposed a "religious freedom" bill that he said -- and then said wasn't -- a direct response to Plano's new LGBT protections. He dropped support for the bill on Monday, not because of the outcry from constituents but because it was opposed by the Texas Association of Business. Then came the no-photo proposal, and he shows no signs of backing down on that one.
"I stand by this bill and I stand by law enforcement who have asked for this protective measure," he wrote on Facebook last night. "While I know that some of you may find this legislation controversial, the overwhelming majority of my constituents want to see our police officers protected and safe so that they can keep our families safe."
Send your story tips to the author, Eric Nicholson.