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Seventh Circuit Says Citizens Have a Right to Record the Police

By Robyn Hagan Cain | Last updated on

The Seventh Circuit Court of Appeals enjoined enforcement of the Illinois eavesdropping law on Tuesday. In a 2-1 decision, the court ruled that the law, which prohibits people from making audio recordings of police officers in public, “likely violates” the First Amendment, reports the Chicago Tribune.

The American Civil Liberties Union of Illinois (ACLU) filed a pre-enforcement action to challenge the statute. The organization was concerned that videographers participating in its Chicago-area “police accountability program,” which includes a plan to openly make audiovisual recordings of police officers performing their duties in public places and speaking at a volume audible to bystanders, would be prosecuted under the eavesdropping law.

Cook County State's Attorney Anita Alvarez, who staked out the extreme position that openly recording police officers in public placed while they perform their duties is unprotected by the First Amendment, may have done more to hurt her case than to help it. The Seventh Circuit noted that Alvarez's position was based on a misreading of Potts v. City of Lafayette, and a misapplication of the "willing speaker" principle.

The Seventh Circuit majority found that the Illinois eavesdropping statute restricts a medium of expression commonly used for the preservation and communication of information and ideas, thus triggering First Amendment scrutiny. In particular, the court noted that the statute restricts far more speech than necessary to protect legitimate privacy interests. As such, the law is subject to heightened scrutiny, though the court declined to impose strict scrutiny.

Judge Richard Posner dissented from the opinion out of concern that enjoining the eavesdropping law would "impair the ability of police both to extract information relevant to police duties and to communicate effectively." (Judge Posner expressed the same concern during oral arguments.)

The majority's decision is consistent with the First Circuit Court of Appeals August 2011 ruling in Glik v. Cunniffe. In that case, the First Circuit found that Boston cops were not protected by qualified immunity after they arrested Massachusetts attorney Simon Glik for openly recording what he thought was excessive force against a suspect. The First Circuit held, "A citizen's right to film government officials ... in the discharge of their duties in a public space is a basic, vital, and well-established liberty safeguarded by the First Amendment."

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