Texas Bill Would Make It Illegal for You to Film a Cop Beating You

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Section 38.15 of the Texas Penal Code makes it an offense to interrupt, disrupt, impede, or otherwise interfere with “public duties,” including those being exercised by a police officer. That’s the law pretty much everywhere, of course, but the question that has arisen in recent years is whether you are “interfering” (etc.) with a police officer just because you are recording what he or she is doing.

Actually, that’s not a serious question, it’s just something bad cops say because they don’t want to be recorded. The argument boils down to, “I had to stop what I was doing and come over and kick your ass because you were recording me, and you therefore interrupted my exercise of a public duty.” It’s a hilariously bad argument that way too many officers have gotten away with.

The Texas statute doesn’t say anything specific about recording, although it does say a person can’t be prosecuted if the interfering acts “consisted of speech only.” That would probably also cover “expressive conduct” (i.e., the middle finger) which also counts as speech under the First Amendment, but what about recording? Yes, say courts who don’t hate freedom, that’s protected too because it is “fundamental and virtually self-evident” that the reason for the recording is so you have proof when you tell somebody what happened. It is therefore unconstitutional to punish someone for doing that, whether via criminal prosecution or the more expedited procedure of just shooting them.

Okay, now along comes Rep. Jason Villalba (R-Dallas) with H.B. 2918. This bill would amend section 38.15 to expressly include within the definition of “interference” the conduct of “filming, recording, photographing, or documenting the officer within 25 feet of the officer,” or doing so “within 100 feet of the officer” if you are also carrying a concealed handgun.

Of course, the officer is always going to be “within 25 feet of the officer,” but let’s assume he meant to say that the person doing the filming must stay more than 25 feet away. (The 100-foot distinction makes no sense to me either, but let’s set that aside.) Villalba says the provision is only meant to provide a buffer zone—or as he insists on putting it, a “halo”—around police officers so they can do their jobs without interference. But the law already precludes actual interference, so this provision adds nothing in that sense. And by legally defining any recording within 25 feet as “interference,” it plainly authorizes police to arrest anyone who’s doing that, whether they are actually interfering or not.

It would, taken literally, make it illegal for you to record an officer beating you, because obviously you are going to be well within his halo while he is doing that.

The bill would create a new defense, but not for being beaten. The defense would be for anyone who, at the time of the “offense,” was working with law enforcement (that’s so they can still appear on “COPS,” I guess), or was acting as a member of the “news media.” Why, yes, since you ask, there is a definition of “news media”: a licensed radio or TV station, certain newspapers published at least weekly, and regularly published magazines that are “of interest to the general public….” So bloggers, 60 Minutes reporters (I think), or any magazine not considered sufficiently “interesting” are not protected.

The existing language does say that the defendant must have acted “with criminal negligence,” but that limitation wouldn’t solve the First Amendment problem. There’s no exception for speech that is “criminally negligent,” unless that speech is also likely to incite imminent violence. So again, I don’t think the new bill adds anything and that it’s unconstitutional for lots of reasons.

Apparently, Villalba has been getting significant criticism for sponsoring this bill, and also for blocking Twitter users who sent him messages complaining about it. (That might or might not say something about his commitment to free speech.) So far, he has refused to withdraw the bill, but he has said that he is willing to reduce the halo to just 15 feet. Still unconstitutional, and still well within beating distance, of course.