Serving as executive director of The Reporters Committee for Freedom of the Press for 12 years has offered me plenty of opportunities to declare various statutes and government policies to be “ridiculous,” “unnecessary,” and “nonsense.”
Truth be told, many of those vague and overbroad rules and regulations are the results of problems or circumstances where government officials attempted to solve bona fide problems.
But for the life of me, I don’t understand the Illinois statute that makes it a felony for anyone to audio-record a police officer performing his or her public duty in a public place. And neither does the city’s new police superintendent, Garry McCarthy.
It was refreshing to appear with McCarthy, a recent mayoral appointee from Newark, at a public panel discussion at Loyola University of Chicago in late January. McCarthy told the story of how he learned about the state’s eavesdropping statute.
In McCarthy’s many years of experience as an officer with the New York and Newark police departments, it was common practice for the police to video and audio record arrests at demonstration scenes. Such recording provides a valuable record of the arrests, both for the public and for the police as a demonstration that officers acted within the law.
Last fall, more than 100 arrests were made in Grant Park when “Occupy Chicago” protestors violated police orders to disperse. McCarthy pantomimed what he saw when he asked that the recordings be played: Police officers respectfully touch the arms of protestors, and appeared to inform them that they had a choice of leaving the area or arrest. “Turn up the volume,” he ordered. There wasn’t any “volume.”
That’s how McCarthy found out about the Illinois eavesdropping law banning audio recording of police activity in public places. He clearly finds the statute to be ridiculous. But there’s not much McCarthy can do about it. He enforces the laws as they’re written.
About a dozen states prohibit recording electronic communications such as telephone calls unless all parties are aware that recording is occurring. Many also prohibit recording in clearly private places.
But the unique Illinois statute goes much further by banning any audio recording of police officers while on duty in public places.
Other states, most notably Massachusetts, have statutes that look similar to the Illinois law. But in Massachusetts, the Supreme Judicial Court has ruled that only “secret” recording using a hidden device is banned. Using an iPhone in full public view to audio record a cop abusing a protestor on Boston Common would not be illegal.
But using your iPhone in Chicago’s Millennium Park to do the same thing could result in felony charges.
At least three legal challenges are pending in state and federal court in Illinois alleging violations of the U.S. Constitution. In one case, the Illinois Supreme Court is being asked to dismiss criminal charges against a man who allegedly recorded two police officers in Oblong, Ill. In another state case, a 20-year-old Chicago woman was arrested for recording two police officers who were obfuscating her efforts to file a sexual harassment claim against another officer. She faced a 15-year prison sentence. After her acquittal by a jury, she filed a civil rights lawsuit.
The 7th U.S. Circuit Court of Appeals has a third case under advisement brought by the American Civil Liberties Union of Illinois, which pre-emptively challenged the law on First Amendment grounds. These cases are bound to demonstrate that not only is the Illinois law unconstitutional, it’s also an embarrassment and colossal waste of government resources to defend it.
Which brings me to a scenario that must be making Chicago officials and the White House uneasy: In May, the G-8 presidential summit will be held in Chicago. Leaders from Western countries and the thousands of foreign journalists descending on Chicago to cover the meetings will no doubt be stunned to find out the U.S. Constitution does not necessarily apply in Illinois. The foreign press no doubt will make comparisons to their relative ease of covering police and army activity in Cairo’s Tahrir Square compared to Grant Park.
I’m betting that lawmakers in Illinois will pass an amendment to the law now pending in the Illinois House of Representatives that will revoke this statute before the G-8. But the question remains: who in the world thought this law was a good idea in the first place?