Federal Judge Says There's No First Amendment Right to Record the Cops

Federal District Court Judge Suzanne Conlon has dismissed (PDF) an ACLU challenge to the Illinois law that makes recording someone in a public space without their permission a felony punishable by up to 15 years in prison. As I've reported here, the law is used almost exclusively against people who attempt to record on-duty police officers. The ACLU was seeking declarative and injunctive relief to prevent the police from arresting workers and volunteers who planned to record police at an anti-war protest this spring.

As I wrote in my feature story, "The War on Cameras", there's a strong argument that this is a newsgathering function protected by the First Amendment. But Conlon doesn't agree.

The ACLU has not alleged a cognizable First Amendment injury. The ACLU cites neither Supreme Court nor Seventh Circuit authority that the First Amendment includes a right to audio record. Cf. Potts v. City of Lafayette, Indiana, 121 F.3d 1106, 1111 (7th Cir.1997) (“there is nothing in the Constitution which guarantees the right to record a public event” ’). Amendment would therefore be futile....

The ACLU intends to audio record police officers speaking with one another or police officers speaking with civilians. The ACLU’s program only implicates conversations with police officers. The ACLU does not intend to seek the consent of either police officers or civilians interacting with police officers. Police officers and civilians may be willing speakers with one another, but the ACLU does not allege this willingness of the speakers extends to the ACLU, an independent third party audio recording conversations without the consent of the participants. The ACLU has not met its burden of showing standing to assert a First Amendment right or injury....

Amendment would be futile. The ACLU has not alleged a constitutional right or injury under the First Amendment. Rather, the ACLU proposes an unprecedented expansion of the First Amendment . . .

Over at the Volokh Conspiracy, commenter "Jeff" makes a good point:

Why don’t we look at the issue from the other side? Is it within the state’s power to prohibit a citizen from recording a law enforcement officer in this way?

I know we tend to think of rational basis review as a rubber stamp, but these laws seem to be a stretch under any standard. Of course, it’s almost impossible to argue that this isn’t rationally related to some asserted purpose, but one could argue that the asserted purpose is merely pretextual, and that the real purpose is impermissible.

The government can certainly provide a rational basis for forbidding the recording of private conversations without the consent of all parties. But it would be interesting to hear the state's rationality for requiring the consent of anyone whose voice might be picked up before making recording in a public space. What interest does that law serve? Certainly not privacy, given that there's no expectation of privacy in public spaces.

I suspect we'll be seeing more from this case, as well as more challenges to the Illinois law, particularly if/when Christopher Drew and Michael Allison become the first people convicted under it. To this point, the law has been used primarily to harass and arrest people who record police in public. The charges are inevitably dropped or downgraded to misdemeanors before the case gets to trial.

MORE: Just to clarify, the Illinois law only applies to audio recording. So security cameras, which generally don't include audio, aren't in violation of the law. If you used an application on your smart phone that only recorded video, you could also presumably record police without being arrested under this law, although they could always arrest you for interfering with a police officer or some other catch-all charge. The Illinois law also includes an exception for law enforcement, so police recordings without permission of the person being recorded are permissible. 

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  • Mr. FIFY||

    Okay, if that's how it's going to be, then it should be illegal for cops to record US.

  • ||

    I wonder how many people at a Cubs game give consent to being recorded.

  • ||

    Exactly. Under this reasoning, can't we have cops who have dashboard cams (with audio) running arrested?

  • ||

    Well if your voice is on a dashboard cam then you could site this case as to the illegality of the evidence, assuming your in Illinois. No?

  • mark||

    not if there's a statute granting an exception to law enforcement.

  • Russ 2000||

    Both of them. (Their attendance dropped like a rock last season.)

  • A Tony||

    Consent is most likely given as a condition of the ticket purchase. Ever read the back of your stub? It's like surrendering to the Stasi!

  • ||

    they should arrest Cubs fans, bunch of drunken moronic kids.
    (not to mention them walking across my lawn)

  • AlmightyJB||

    "Is it within the state’s power to prohibit a citizen from recording a law enforcement officer in this way?"

    Yes,it's in the commerce clause silly.

  • ola||

    According to Erwin Chemerinsky (Founding Dean, University of California, Irvine School of Law) you are correct, move to the head of the class.

  • Heath||

    Article I, Section 8, Clause 3: To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

    How does that give states the power to prohibit recording law enforcement officers in this way?

  • Kristen||

    That one went way over your head, I see.

  • Heath||

    Haha, yes it did. Is it in reference to the fact that the commerce clause has used to justify pretty much anything and everything the govt wants to do if they can't find the authority elsewhere?

  • Kristen||

    You got it!

  • AlmightyJB||

    You are correct sir. Here's a nice article about how it covers gun free zones around schools.

    http://townhall.com/columnists.....ause_abuse

  • Heath||

    Just read the wikipedia page on Erwin Chemerinsky, and this comment makes much more sense now.

    "Judicial activism is the label for the decision that people don't like."

    http://en.wikipedia.org/wiki/Erwin_Chemerinsky

  • Anonymous Coward||

    Don't like Commerce? Well, we've got a little "necessary and proper" here too. And if that doesn't float your boat, there's some "general welfare" in stock. And if push comes to shove, we'll just pass a federal law and beat you down with some good old fashioned "supremacy."

  • LibertarianJRT||

    Nancy, is that you? Sucks having to fly commercial now doesn't it?

  • Fat Crack Ho||

    Exactly, because such a prohibition is necessary and proper, and provides for our general welfare!

  • ChicagoSucks||

    What about all the security cameras I see in public that are clearly not operated by the police? If Illinois law makes recording someone in a public space without their permission a felony, then does that mean that I can sue all these business who operate private security cameras in a public place because they did not have my "permission"?

  • Radley Balko||

    I think the distinction is that security cameras don't include audio. If they did, they'd be in violation, too.

  • Google Maps||

    Whew!

  • Rich||

    Get the lawyers from Gallaudet University on this.

  • ChicagoSucks||

    The older I get, the more I wish I had a JD.

    So hypothetically, if I'm walking down the sidewalk while leaving a voice message for somebody and I happen to pass by a cop who's making an arrest, then technically I have committed a felony punishable by an 'appropriate' sentence of 15 years? I don't see this law being enforceable in any sort of consistent way.

    Wasn't it mayor La Guardia who once said something to the effect of "any law that is not consistently enforced erodes respect for law enforcement"?

    I wonder if any LEOs who read this would care to comment on their perception of the public's respect for their "authorita"?

  • Anonymous Coward||

    Why on earth do you think consistency is a goal of this law?

    Fear, obedience, and silence are the intended goals. You may not even know you've broken the "law" until some LEO kicks in your door, shoots your dog, then throws the cuffs on you.

  • Meh||

    No, the cop will befriend you first, suggest you get the families together for a picnic at the park and tell you to use your camera, then the SWAT team moves in.

  • mark||

    there may be an element of intent or knowledge. I haven't read the law, but you might have to knowingly record audio of a police officer.

  • dave||

    Unfortunately, there aren't any "elements" necessary. The police apparently can arrest and charge you without legal justification - basically fuck you up and you have no recourse. Or they can just invade your house with a SWAT team, shoot your dog and mabye your or a family member and terrorize everybody in the house just because you MIGHT have violated some fascist drug or gambling law.

  • Jeff Akston||

    So every tourist taking pictures is breaking the law? Every news crew on the street is breaking the law? Every electronics store with cameras and TVs in their window is breaking the law?

    It's asinine. How can someone go through law school and no realize the idiotic implications of this ruling?

  • Kristen||

    If I ever (god forbid) find myself in Illinois, I'm gonna call 911 if I see a stand-up news crew on the prowl. If the cops refuse to arrest the news crew, it's civil court time!

  • ChicagoSucks||

    If you've got the money then I would encourage you to do just that. I've noticed that around here (Chicago) nothing gets done until somebody has to open their wallet.

  • d||

    If only Rodney Kings' police assailants were Illinois cops.

  • EscapedWestOfTheBigMuddy||

    Isolated Incident.

  • ||

    Has King been severely beaten since then? Then it's isolated, and The System Works™.

  • Secretary Janet Napolitano||

    Your use of "The System Works™" is punishable by law, as it is my personal intellectual property. It is trademarked, and you yourself noted this fact in your post.

    Preventing criminals like you from destroying this country—Literally. I run this system, and The System Works™.

  • ||

    i luv it when u get fem fatal goddess all over me!

  • yonemoto||

    Of course there's no first amendment right to record the cops. It's an UNENUMERATED right. Perhaps we should really get around to enumerating it so that people can plead the 28th, much like they plead the 5th.

  • Brett L||

    Wait. I have no right to gather exculpatory evidence of my behavior with LEOs? What if we disagree on what was said and they arrest me? Fuck off statist!

  • yonemoto||

    Just because it's an unenumerated right doesn't mean it isn't a right.

  • Fluffy||

    The standing issue is moronic.

    The ACLU's website has a blog where they talk about the activities of their organization and comment on public affairs and legislation.

    That makes them journalists.

    WTF is so hard about asserting that the law violates the press clause and not the speech clause?

  • lunchstealer||

    I think it's even easier in that the ACLU's purpose is to petition the government for the redress of grievances, and if they can't record evidence of those grievances, they're hamstrung from proving them, and thus from getting them redressed.

  • Robert||

    Seems to me that what it violates is not any constitutional provision regarding speech, press, assembly, religion, petition, etc., but the constitutional and statutory provisions of each state regarding actions of gov't. If the police say an action (such as words) of theirs can't be recorded, I say, "Thank you very much. That means you're off the job and this is not an official act. Any ticket you write is then invalid and requires no response."

  • Maybe I'm a LEO||

    Couldn't just writing down what the LEO said be considered recording?

  • Rich||

    I wonder where the line is drawn as well. Suppose I rig my camcorder to skip every nth millisecond. What does n have to be before it's not "really" recording?

  • Rich||

    skip record -- Oh, you know what I mean!

  • ||

    calm down, it makes sense both ways.

  • Future Cop||

    ** Jedi hand wave **

    You had no reason to record anything.

  • Virginia||

    Illinois was already a failed state with their unfunded pension liabilities, their budget deficit, and the recent massive tax increases. This law is the cherry on top.

  • Slut Bunwalla||

    I don't see why cops need this protection. If they're not doing anything wrong, they have nothing to fear, right?

  • LEO||

    I serve and protect ... off the record.

  • KWebb||

    The police are the only ones in the state professional enough to carry video cameras.

  • lunchstealer||

    Well played, sir.

  • Joe R.||

    And more evidence should be a good thing, right?

  • Mango Punch||

    I would say Reason.tv should do a 'Save Illinois' series, but unlike in Cleveland, they'd probably all get arrested.

  • ||

    W. . .T. . .F.

  • EscapedWestOfTheBigMuddy||

    Results based jurisprudence.

    Same as it ever was.

  • lunchstealer||

    Nonstandard Translation:
    "We're Totally Fucked"

    Yes. Yes, we are.

  • ||

    just another stupit cracker law to ignores

  • Kristen||

    Balkooooooooooo?

  • ||

    Even under the corrections noted in the post, every standup by a TV reporter on the Mean Streets of Chicago is a multiple felony.

    They are engaged in video and sound recording of all the passersby, without the consent of any of them.

    And I'm still looking for a challenge of these laws on due process grounds. I thought the ACLU was supposed to be the devil dogs of due process, but they don't challenge a law that outlaws gathering evidence to be used in your defense on those grounds? WTF?

  • robc||

    Any Chicago reporters balls enough to turn themselves in, demand prosecution and then appeal to overturn their conviction and the law?

  • Jon Roland||

    The court decision was correct. There is a right to record the cops, but it is not in the First Amendment. It is in the Ninth Amendment and in the Militia Clauses. The First is about the production and dissemination of communications, not the recording of them. The right in question is the right to hold public servants accountable and to help enforce the law (perhaps against the cops). That is Ninth and Militia, respectively.

    The problem with this case is that it was not argued properly. Undereducated lawyers reached for some precedents instead of building on the Constitution itself.

  • Kristen||

    Agree....the ACLU's case was presented ineptly.

  • robc||

    I made a 9th amendment comment below, but I think it is in the 1st amendment - Freedom of the Press. Recording of public events is pretty much a prerequisite to publishing them.

  • ChicagoSucks||

    How does the Constitution define "press"?

  • robc||

    it doesnt. Everyone who publishes something is a member of the press.

    Blog comments are protected under freedom of press.

  • EscapedWestOfTheBigMuddy||

    This.

    To emphasize the point, the direct analogy from the framers' time is pamphleteering. Which was rampant and in some cases (1) anonymous, (2) amateur, and (3) rhetorically charged and inflammatory.

    Which is to say, all those things that we are now assured---assured, I tell you---are new (indeed, unprecedented) and undesirable features of the public discourse which should be regarded as unprotected.

    I'll leave it to you to decide if people making such claims should be held up as examples of ignorance or of disingenuous, power-hungry shitheadedness.

  • ||

    ""Everyone who publishes something is a member of the press.""

    Define publish? When I hit publish on facebook, am I a member of the press?

    It's the same discussion with Wikileaks.

  • EscapedWestOfTheBigMuddy||

    Define publish

    publish: (v.) To make information or opinion publicly available. To distribute data on a durable recording medium, including printed text, audio recording, video recording, cuneiform, or carved into the side of a building. To communication in any medium with a wide or general audience, especially if the communication can be recorded for future reference.

    The root is the same as for "public"; when you make data public, you have published it.

    //sheesh!

  • Robert||

    I think it's silly to set this on freedom of the press. Recording audio in a situation like this isn't publication, nor should it be dependent on intent to publish; it's taking down something that's already public. What if you just want it to reinforce your own memory?

  • Colonel_Angus||

    Recording is not "production of communication"?

  • robc||

    Read thru most of the Volokh comments, saw many mentions of 1st and 4th Amendment (personally, I think freedom of the press covers it) but not a single mention of it being a 9th amendment right.

    WTF?

  • Barely Suppressed Rage||

    Define the rights protected by the 9th Amendment.

    We'll wait.

    If you can do that, you will have bested dozens, if not hundreds, of legal scholars and judges who have analyzed the question over the past 80 years or so.

  • lunchstealer||

    I can think of two different Constitutional justifications for requiring police to consent to recording, plus a weaker one that’s still worth considering.

    First, I agree with the previous commenter that the right to petition the government for redress of grievances is useless without the right to collect evidence of said grievance. So there’s a strong justification under the First Amendment.

    Second, I would say that the Sixth Amendment, which requires that persons be able to compel witnesses in their favor, is in essence a requirement that individuals be able to collect evidence in their favor, and the prohibition of recording police officers infringes that right, and the right to confront some witnesses against them (LEOs) with evidence that contradicts their testimony (recordings of the defendant’s interaction with said LEOs).

    Third, the Ninth suggests that there are rights that are not specifically enumerated under the Constitution. The Freedom of Information Act hints that there is a right to obtain information from the government, and thus it seems that any interaction between the government and a private citizen should also be covered under such a right. That one’s weaker, since the only unenumerated right I’ve ever heard of is the right-to-privacy argument in Roe v. Wade, but it’s better than nothing.

  • robc||

    Isnt Roe v Wade a penumbra of the 14th argument and not a 9th argument?

  • Barely Suppressed Rage||

    Roe v. Wade is a penumbra of an emanation from Griswold v. Connecticut.

  • lunchstealer||

    I think it is, but I never understood the concept of the penumbra of the 14th. Either way it's an unenumerated right, which is what I was getting at. But you're right that the Ninth gets no respect, even in the stuff where it seems like a slam dunk, such as Roe v. Wade

  • Robert||

    The trouble with asserting a 9th amendment right is finding evidence for the assertion. Sure, there are unenumerated rights, but how do you know this is one?

  • Barely Suppressed Rage||

    Exactly.

  • Kolohe||

    an unprecedented expansion of the First Amendment

    Judge says that like it's a bad thing

  • ||

    I don't think it's a first amendment issue, but more of the lack of privacy in public space. But that's a two way street too. Can/should cops record people in public space without a warrant? Assuming their dashcams record audio, the two way street should apply to people who record cops. Recording people in public space either is against the law or not, one's profession shouldn't matter.

  • h4x354x0r||

    At least in Maryland, a circuit court judge issued a major smackdown against the cops using these 'wiretapping' laws to thwart recording, saying cops have absolutely no expectation of privacy while doing their jobs as public servants.

    http://articles.baltimoresun.c.....ell-phones

  • Colonel_Angus||

    The first amendment protects all forms of communication. Audio recordings are a form of communication. Fuck that judge.

  • ||

    All honest law enforcement personnel should welcome the chance to be recorded 24/7, drug tested and audited to prove how they're always right and never do anything illegal.

    Only cops planning to break the law would object and they should all be locked up!

  • ed||

    let's make the police state sexy.
    http://www.zazzle.com/thepman
    change the message. get evolved. don't devolve.
    we can do it.

  • lunchstealer||

    Just noticed something else that's stupid and fucked about this judge.

    "The ACLU intends to audio record police officers speaking with one another or police officers speaking with civilians."

    Umm, douchebag, whatever LEOs may whisper in your ear, they are NOT military, and therefor are civilians, too. The proper term to have used there is not 'civilians', but 'private citizens', or 'individuals' or 'the public'.

  • Barely Suppressed Rage||

    THIS too.

    I make this point as well - I can't stand it when the po-po talk about the "civilians." Does anyone need further evidence of their "us vs. them" mentality? They consider the people they purportedly SERVE and PROTECT as "civilians" - the "mere" in front of "civilians" is heavily implied.

  • Jon Roland||

    The First Amendment is a restriction on the powers of Congress, specifically, not on the state legislatures. (There was a separate proposed amendment to do that, which was not adopted.) Under the understanding of rights explained by Madison in his introduction to the Bill of Rights, powers and rights are complementary: every right is a restriction on a power, every power a restriction on rights. Our rights are every public action remaining after subtracting the powers.

    The Ninth Amendment essentially includes all these remainder rights, including those enumerated in other amendments. This is clear from the ratification debates and the amendments proposed by the state ratifying conventions.

    So, strictly speaking, the Emerson and succeeding cases that extended the First Amendment to the states via the 14th, were not correct. The First only restricts Congress. However, the Ninth applied to everyone, and includes the kinds of public action listed in the First. The SC should have cited the Ninth, not the First, for a cleaner opinion.

    The ACLU argued in this case that the First/Ninth Amendment right to produce (speech) or disseminate (press) necessarily includes the right to acquire the information to be produced or disseminated as a communication. The court disagreed, saying in essence that acquisition of information is not production or dissemination. Different activity. That is correct.

    To understand the case one has to examine the state statute involved. It was intended to prevent listening devices in rooms, not recording cops at work, but it was worded broadly enough that cops were able to seize on it for use against people recording them. Does the speech/press right entail a right to put listening devices in rooms without the informed consent of private persons present? No, it does not. Not even if the persons are cops off-duty. But if they are cops on-duty, then there is a right, but it is not the right of speech/press. It is the right to supervise public servants, which is a separate right.

    If one analyzes the many amendments proposed by the state ratifying conventions, one finds most of them fall into two main categories: the right to a presumption of nonauthority, and the right to the means to supervise public servants, such as reports and disclosures of their activities. This is discussed at http://constitution.org/9ll/schol/pnur.htm

  • Barely Suppressed Rage||

    Um... actually, it is quite clear from the floor debates upon introduction of the 14th Amendment that the intent expressly was to apply the protections of the first 8 amendments to the states.

    The whole "selective incorporation" doctrine is bullshit invented by the judiciary out of whole cloth and stands as likely the most egregious and far-reaching example of judicial activism. That and the Slaughterhouse Cases, which also screwed the American people out of protections against state government action that the 14th clearly was meant to provide.

  • Ishmael||

    Well, if you REALLY want to send a chill through the ranks of corrupt kudges and police, tell them you're observing their behavior as a member of one of THESE:

    http://en.wikipedia.org/wiki/Committee_of_Vigilance

  • دردشه عراقية||

    Thanks

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