CHICAGO (CN) – The 7th Circuit enjoined enforcement of Illinois’ controversial eavesdropping law that makes it a felony, punishable by four to fifteen years in prison, to record law enforcement officers while working.
The law, originally passed in 1961, criminalizes the nonconsensual recording of most oral communication without the consent of all parties. Photos, taking notes, and silent video recording of a conversation are permissible under the statute. Subsequent amendments carved out immunity for law-enforcement officers and for audio recordings related to news reporting, but enhanced the punishments for recording of police officers by a private citizen.
The law has come under fire by both lawmakers and civil rights groups within the state. The ACLU filed suit, citing concerns that its members would face prosecution while carrying out the organization’s “police accountability program.”
The program involves recording officers who are performing their duties in public places, with special attention given to recording political protests and demonstrations. The ACLU’s pre-enforcement action sought to enjoin the Illinois State’s Attorney, Anita Alvarez, from enforcing the law against citizens who record police officers on duty.
U.S. District Judge Suzanne Conlon rejected the ACLU’s challenge, calling the claim “an unprecedented expansion of the First Amendment,” which she noted “does not protect the right to audio record.”
But the 7th Circuit, splitting two-to-one, reversed the ruling, saying, “the district court’s decision turned on mistaken understandings about the relevant First Amendment doctrine.”
Rejecting Conlon’s determination that the ACLU lacked standing, the appellate panel wrote, “The Illinois eavesdropping statue restricts far more speech than necessary to protect legitimate privacy interests; as applied to the facts alleged here, it likely violates the First Amendment’s free-speech and free-press guarantees.”
Judge Diane Sykes penned the majority opinion.
“Unlike the federal wiretapping statute and the eavesdropping laws of most other states, the gravamen of the Illinois eavesdropping offense is not the secret interception or surreptitious recording of a private communication. Instead, the statute sweeps much more broadly, banning all audio recording of any oral communication absent consent of the parties regardless of whether the communication is or was intended to be private,” she wrote.
The court began by noting that although audio recordings are not speech themselves, they are entitled to constitutional protection as communication technologies which have essential speech-production functions.
Because the law burdens First Amendment rights directly, not incidentally, and is content-neutral, the Supreme Court’s intermediate scrutiny test should apply, the majority determined.
“Intermediate scrutiny standards share certain essential elements in common. All require (1) content neutrality (content-based regulations are presumptively invalid); (2) an important public-interest justification for the challenged regulation; and (3) a reasonably close fit between the law’s means and its ends. This last requirement means that the burden on First Amendment rights must not be greater than necessary to further the important governmental interest at stake,” Skyes wrote, noting that while the law meets the content-neutrality standard, it likely fails the rest of the test.
“But 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. Rather than attempting to tailor the statutory prohibition to the important goal of protecting personal privacy, Illinois has banned nearly all audio recording without consent of the parties-including recording that implicates no privacy interests at all.”
The majority also cited a ruling by the First Circuit Court of Appeals, which considers the right to record police officers so well-established that it denies qualified immunity to officers who knowingly attempt to abridge a citizen’s attempts to record.
“As best we can tell, the Illinois statute is the broadest of its kind; no other wiretapping or eavesdropping statute prohibits the open recording of police officers lacking any expectation of privacy,” Sykes summarized.
“If protecting privacy is the justification for this law, then the law must be more closely tailored to serve that interest in order to avoid tramping on speech and press rights.”
The court issued a temporary injunction preventing enforcement against citizens who record police officers and returned the case to Judge Conlon for a more extensive ruling on the merits.
Judge Richard Posner dissented from the decision, noting that while audio recording provides a more accurate record, it can also infringe on privacy rights and obstruct law enforcement efforts.
“The invalidation of a statute on constitutional grounds should be a rare and solemn judicial act, done with reluctance under compulsion of clear binding precedent or clear constitutional language or-in the absence of those traditional sources of guidance or compelling evidence, or an overwhelming gut feeling, that the statute has intolerable consequences,” he began.
Posner argued that the court’s ruling “casts a shadow over electronic privacy statutes of other states as well,” noting that Alaska, Arkansas, California, Michigan, and North Dakota have similar eavesdropping laws.
“Judges asked to affirm novel ‘interpretations’ of the First Amendment should be mindful that the constitutional right of free speech, as construed nowadays, is nowhere to be found in the Constitution. The relevant provision of the First Amendment merely forbids Congress to abridge free speech, which as understood in the eighteen century meant freedom only from censorship.”
The majority’s ruling, Posner cautioned, could obstruct effective law enforcement by distracting officers and encouraging disruptive behavior. “Today’s ruling may cause state and federal judicial dockets in Illinois to swell because it unwittingly encourages police officers to shoo away bystanders.”
Additionally, Posner noted, a citizen talking to a police officer may not wish to have the conversation recorded by a third party. “Police may have no right to privacy in carrying out official duties in public. But the civilians they interact with do,” he wrote, pointing out that allowing unrestricted recording of police activity could infringe on the rights of other private citizens.
“A person who doesn’t want his conversation to be recorded will have to keep a sharp eye out for anyone nearby holding a cell phone, which in many urban settings is almost everyone,” he wrote.
Posner also criticized the majority’s decision to issue a preliminary injunction and remand the case despite providing no indication of what argument or evidence presented could allow the district court to again uphold the act.
The 7th Circuit’s ruling comes just two weeks before the NATO summit will begin in Chicago, where police are already bracing for large-scale protests.