The Score in Illinois: First Amendment 2, Eavesdropping Law 1

Once again, the CMLP is pleased to report that the First Amendment has scored an important victory in a case involving the recording of police officers in public. Last summer saw the strong pro-First Amendment decision from the U.S. Court of Appeals for the First Circuit in Glik v. Cunniffe (see our coverage here); the spring of 2012 brings us another sunny (and lengthy) decision for freedom of speech from the U.S. Court of Appeals for the Seventh Circuit in today's opinion in American Civil Liberties Union of Illinois v. Alvarez.

(Full disclosure, and a point of pride: the CMLP, through the remarkable services of our colleagues at Harvard Law School's Cyberlaw Clinic, joined in an amicus brief in Alvarez drafted by the Reporters Committee for Freedom of the Press. We have raised many of these arguments ourselves in prior cases -- see the CMLP's brief in Glik.)

Background

The Alvarez case arose out of a "police accountability program" planned by the ACLU of Illinois, which would involve openly making audiovisual recordings of Chicago police officers going about their duties in public. However, the ACLU was concerned that its videographers would be subject to prosecution and imprisonment for a felony under Illinois' expansive eavesdropping law, which prohibits electronic recording of conversations without the consent of all parties. Most troublesome is the definition of "conversation" under the law:

For the purposes of this Article, the term conversation means any oral communication between 2 or more persons regardless of whether one or more of the parties intended their communication to be of a private nature under circumstances justifying that expectation.  

720 ILCS 5/14-1(d) (emphasis added). In other words, the law applies regardless of whether the conversation at issue was intended or could even reasonably be expected to be private. Furthermore, as the Seventh Circuit notes, "[t]he offense is normally a class 4 felony but is elevated to a class 1 felony-with a possible prison term of four to fifteen years if one of the recorded individuals is performing duties as a law-enforcement officer."

Yikes.

Rather than waiting to see if the Chicago police would gently tolerate this public oversight of their activities, as police have in so many other instances, the ACLU filed a federal lawsuit seeking to enjoin the enforcement of the law against them in connection with the "police accountability program." Specifically, the ACLU claimed that the First Amendment protects the right to record the police openly in public, and that the eavesdropping law was unconstitutional.

After a few go-rounds in federal district court over the issue of whether the ACLU was facing a real threat of prosecution, the district court denied the ACLU's request for a preliminary injunction and dismissed the case on the basis that the First Amendment "does not protect a right to audio record." The district court framed its constitutional analysis in terms of the "willing speaker" doctrine, holding that the ACLU's rights when recording were limited to the rights of a listener, and were therefore dependent upon the police officers they might record being willing speakers. Because the eavesdropping law only prohibited recording of those unwilling to be taped, it did not, in the district court's opinion, reach any situation in which the ACLU might have a right to record.

A Right to Record Audio

The U.S. Court for the Seventh Circuit, in a 2-1 split decision, reversed and remanded the case to the district court with an order to grant the preliminary injunction sought by the ACLU.  Skipping past some of the procedural discussion, the Seventh Circuit first rejected the district court's reliance upon the "willing speaker" doctrine:

The district court's reliance on the "willing speaker" principle gets the doctrine right but its application wrong. ... [T]his is not a third-party "right to receive" case. The ACLU does not claim to be an intended recipient of police (or police-civilian) communications or to have a reciprocal right to receive the officers' speech as a corollary of the officers' right to speak. 

Rather, the court held, the ACLU planned to record information for the purpose of sharing that information with the public -- i.e., to facilitate its own speech. From there, it was a short step to finding that the "expansive reach of [the eavesdropping] statute is hard to reconcile with basic speech and press freedoms."

The Seventh Circuit's