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First Amendment prevents prosecution for recording police performance of public duties

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  1. Newsgathering
The Illinois Eavesdropping Act, one of the broadest restrictions on audio recording nationwide, is likely unconstitutional and may not be…

The Illinois Eavesdropping Act, one of the broadest restrictions on audio recording nationwide, is likely unconstitutional and may not be enforced against the American Civil Liberties Union of Illinois when it records conversations of police officers openly engaged in their public duties, a federal appellate court ruled today.

The decision by the U.S. Court of Appeals in Chicago (7th Cir.) is relatively narrow, but the court's decision prevents Cook County State Attorney Anita Alvarez from enforcing the statute against the ACLU and could be useful to other individuals who wish to challenge the Illinois law.

"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," Harvey Grossman, legal director of the Illinois ACLU, said in a statement.

The ACLU brought the lawsuit as a First Amendment-based preemptive challenge, arguing that the threat of prosecution under the act chills the implementation of the ACLU's police monitoring program. As part of its expanded police monitoring program, the ACLU records police officers without their consent when they are performing their public duties in public places and speaking at an audible volume.

The organization's objective is to improve police practices, deter and detect any police misconduct and create a record that may help resolve any testimonial disputes, according to the group. The ACLU claimed, as just one example, that it was deterred in November 2010 by a fear of prosecution under the eavesdropping law from making recordings of police activity at a protest in Chicago.

The eavesdropping law criminalizes the audio recording of any communication without the consent of all parties involved, regardless of whether the conversation was or was intended to be private, or whether the recording was made secretly. The Alvarez case is just one of a number of legal challenges to the law, as well as ongoing legislative attempts at reform, according to the Reporters Committee for Freedom of the Press.

In a 2-1 decision by Judge Diane Sykes, the court held that the Eavesdropping Act "burdens speech and press rights and is subject to heightened First Amendment scrutiny." The ruling ordered the district court to preliminarily enjoin Alvarez from enforcing the law against the ACLU. Judge Richard Posner dissented.

In discussing a broad range of First Amendment cases — including those addressing campaign finance laws, movies and the right to gather news — the court recognized that the act of making an audio recording is a necessary corollary of the rights of free speech and free press. "[T]he eavesdropping statute operates at the front end of the speech process by restricting the use of a common, indeed ubiquitous, instrument of communication," the court said.

While the state argued that the law was a constitutional way to protect individuals' privacy, the court rejected this argument. "By legislating this broadly — by making it a crime to audio record any conversation, even those that are not in fact private — the State has severed the link between the eavesdropping statute’s means and its end," the court said. "Simply put, these privacy interests are not at issue here."

The Seventh Circuit joins 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."

Importantly, the court's injunction extends only to the ACLU and its police monitoring program, according to Adam Schwartz, senior staff counsel at the ACLU. However, it is still "forceful" precedent in favor of other individuals and organizations who wish to record police conduct in public, Schwartz said, adding that the ruling indicates a "very high likelihood of success" in the federal trial court.

The Reporters Committee, joined by several other news media advocacy groups, filed an amicus brief in the 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. A representative of the Cook County State Attorney could not be reached for comment.

The Reporters Committee issued a press release earlier today praising the ruling.

Related Reporters Committee resources:

· Police, Protesters and the Press: The right to record in the wrong places

· NM&L: Courts split over First Amendment protection for recording police performance of public duties

· Can We Tape?