This Monday, the U.S. Supreme Court declined to review a decision by the 7th U.S. Circuit Court of Appeals blocking the enforcement of an Illinois eavesdropping law. The broadly written law makes it a felony to make an audio recording of someone without their permission, punishable by four to 15 years in prison. In most states, like NY, only one person needs to consent, so the consent of the person who is recording it is enough to make it legal.
Many states, however, including Illinois, have “all-party consent” law, which means all parties to a conversation must agree to being recorded before recording it can be done. But in all of those states — except for Massachusetts and Illinois — the laws include a provision that the parties being recorded must have a reasonable expectation of privacy for it to be a crime to record them. Since police do not have an expectation of privacy while they are doing their work on the public street, video or audio recording of a police officers would not be banned.
The Illinois legislature took out “the reasonable expectation of privacy” exception specifically to make it illegal to videotape police officers. The Illinois law then became one of the most toughest eavesdropping laws in the country. It was often used to arrest people who attempted to record on-duty police officers and other public officials. Of course, it contains an exception to allow law enforcement to record folks without their consent for valid law enforcement purposes. It also exempts broadcasters.
The lawsuit that led to this decision was filed by the American Civil Liberties Union, which is planning a Police Accountability Project in Chicago that will involve recording police officers while they’re on duty. The ACLU wanted to be sure its employees and volunteers wouldn’t be charged with felonies.
In May of this year, The Federal Appeals Court that covers Illinois, the 7th Circuit found a specific First Amendment right to record police officers. The Illinois State Attorney General had actually argued that the law does not prohibit free speech, it merely makes it illegal to record audio. The 7th Circuit rejected that narrow approach, stating the obvious:
Audio and audiovisual recording are communication technologies,and as such, they enable speech. Criminalizing all nonconsensual audio recording necessarily limits the information that might later be published or broadcast—whether to the general public or to a single family member or friend—and thus burdens First Amendment rights. If as the State’s Attorney would have it,the eavesdropping statute does not implicate the First Amendment at all, the State could effectively control or suppress speech by the simple expedient of restricting an early step in the speech process rather than the end result. We have no trouble rejecting that premise.Audio recording is entitled to First Amendment protection.
It’s the second federal appeals court to strike down a conviction for recording police. In August 2011, the U.S. Court of Appeals for the First Circuit (covering Massachusetts) ruled that a man wrongly arrested for recording cops could sue the arresting officers for violating his First Amendment rights. That decision also found a broad First Amendment right to record on-duty government officials in public:
“Gathering information about government officials in a form that can readily be disseminated to others serves a cardinal First Amendment interest in protecting and promoting ‘the free discussion of governmental affairs.'”
The Supreme Court this Monday refused to grant certiorari (review) in the case. This means no opinion was written by the Supremes, the court just denied further review of the issue. Denial of certiorari also doesn’t necessarily mean the justices endorse the lower court’s ruling. It does mean, however, that at least six of the nine current justices weren’t so opposed to the ruling that they felt the case needed to be heard.
It is now technically legal to record on-duty police officers in every state in the country.Unfortunately, people are still being arrested for it and will likely continue to be arrested for it. Police officers who want to make an arrest to intimidate videographers can always use broadly-written laws that prohibit “disorderly conduct,” “obstruction of governmental administration” or similar ordinances that give law enforcement wide discretion. In fact, earlier this year I represented a man on Long Island who was arrested for disorderly conduct for videotaping officers during a drug bust occurring on a public street. The charges were subsequently dropped before he even had to appear in court. Yet, he was arrested, handcuffed, brought into the precinct and more importantly prevented from continuing the taping of the arrest. He was happy to not be charged and did not want to bring any more attention to himself, so he declined to bring a lawsuit or to make a public statement of any kind. Who won in that battle?
This decision does strengthen the right of citizens to videotape police officers in public. Let’s hope it also makes police officers more aware that courts will not support the arresting of individuals who are just exercising their Free Speech rights.