U.S. Supreme Court declines to hear case on taping Illinois cops

Jack Komperda | Newsgathering | News | November 26, 2012

The U.S. Supreme Court announced Monday that it will not hear an appeal of a case involving the open recording of police officers in Illinois while on the job.

The high Court denied to review an appeal for Alvarez v. ACLU of Illinois, leaving in place a decision by the U.S. Court of Appeals in Chicago (7th Cir.) barring enforcement of the Illinois Eavesdropping Act against the American Civil Liberties Union of Illinois. The local ACLU chapter challenged the state law in 2010, arguing in a lawsuit filed against Cook County State’s Attorney Anita Alvarez that the state law’s provision barring the recording of police officers openly engaged in their public duties chilled the implementation of a planned police monitoring program.

“We are pleased that the Supreme Court has refused to take this appeal,” said Harvey Grossman, the ACLU of Illinois legal director in a statement. “We now hope to obtain a permanent injunction in this case, so that the ACLU’s program of monitoring police activity in public can move forward in the future without any threat of prosecution. The ACLU of Illinois continues to believe that in order to make the rights of free expression and petition effective, individuals and organizations must be able to freely gather and record information about the conduct of government and their agents – especially the police.”

The federal appeals court concluded in May that, as applied to the circumstances faced by the ACLU chapter, the state law was likely an unconstitutional violation its First Amendment rights to openly record the officers.

The Reporters Committee for Freedom of the Press, joined by several other news media advocacy groups, filed an amicus brief in the Seventh Circuit case, arguing that the criminalization of communications to which there is no reasonable expectation of privacy chills socially valuable newsgathering and watchdog activities and suppresses the spread of important information.

The Seventh Circuit decision joined other courts to recognize that the First Amendment protects the audio recording of police officers, including the First Circuit, which held last year in Glik v. Cunniffe that the right to record police officials in the public performance of their duties is "clearly established."