7th Circuit Orders Injunction Against Illinois Ban on Recording Cops

Today the U.S. Court of Appeals for the 7th Circuit ordered a preliminary injunction barring Cook County from enforcing the Illinois Eavesdopping Act against "people who openly record police officers performing their official duties in public." The law, the strictest of its kind in the country, makes such recording a Class 1 felony, punishable by four to 15 years in prison. Responding to a lawsuit by the American Civil Liberties Union of Illinois, which wants to monitor police behavior without fear of arrest, a three-judge panel of the appeals court said:

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. Illinois has criminalized the nonconsensual recording of most any oral communication, including recordings of public officials doing the public's business in public and regardless of whether the recording is open or surreptitious. Defending the broad sweep of this statute, the State's Attorney relies on the government’s interest in protecting conversational privacy, but  that interest is not implicated when police officers  are performing their duties in public places and engaging in public communications audible to persons who  witness the  events. Even under the more   lenient intermediate standard of scrutiny applicable to content-neutral burdens on speech, this application of the statute very likely flunks. The Illinois eavesdropping  statute 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 frees peech and free-press guarantees.

Judge Richard Posner, who during oral arguments last fall worried that lifting the ban would encourage "snooping around by reporters and bloggers," dissented, warning that recognizing a First Amendment right to record police officers in public "is likely to  impair  the ability of police both to  extract information relevant to police duties and to communicate effectively with persons whom they speak with in the line of duty." The ACLU's Harvey Grossman, not surprisingly, disagrees:

In order to make the rights of free expression and petition effective, individuals and organizations must be able to freely gather and record information about the conduct of government and their agents—especially the police.  The advent and widespread accessibility of new technologies make the recording and dissemination of pictures and sound inexpensive, efficient and easy to accomplish. Empowering individuals and organizations in this fashion will ensure additional transparency and oversight of police across the State.

The 7th Circuit's decision is here (PDF). The ACLU has background information here. Previous coverage of the Illinois law, which has been ruled unconstitutional by two state judges, here. In the May issue of Reason, I discussed the Boston case that produced a similar ruling by the U.S. Court of Appeals for the 1st Circuit. Radley Balko chronicled "The War on Cameras" in the January 2011 issue of Reason. Last month Steve Silverman suggested "7 Rules for Recording Police." More from Reason.tv:

[via Radley Balko's Twitter feed]

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  • plu1959||

    Richard Posner: Utilitarian Gone Wild.

  • Jerry||

    What did he do again previously to gain respect with libertarians?

  • ||

    He beat up Peter Singer in philosophical debates, particularly in the realm of eco-theology and "animal rights".

  • Trespassers W||

    I was struggling to remember myself. Everything he's said lately is pretty f'd up.

  • Tulpa the White||

    If he's a utilitarian he's got a very messed up utility function.

  • ||

    Yeah, wtf Posner, he's generally pretty reasonable.

  • Fist of Etiquette||

    ...warning that recognizing a First Amendment right to record police officers in public "is likely to impair the ability of police both to extract information relevant to police duties and to communicate effectively with persons whom they speak with in the line of duty."

    It's a good thing there's no statute against making a record of bullshit, or it would be illegal to convey this guy's opinion.

  • Joe R.||

    He just described half of the Bill of Rights. Guess those need to go, too.

  • Trespassers W||

    "You have the right to have information extracted from you. You have the right to stop resisting. If you choose to resist, the court will provide a taser if you have none of your own."

  • TELLMOFF||

    The legislation was expressedly passed to shield police from lawsuits. The motive of protecting police brutality was blatant. The legislators wanted the votes of cops, teachers, and their families.

  • wareagle||

    it also has the unintended consequences of tarring every cop as a thug-in-a-badge, even those who the job honorably. You know, if folks exercised the same zeal in going after the bad ones, folks would not think they needed to record any encounter with any cop for any reason.

  • ||

    If your job directly requires you to take immoral actions which deprive others wrongfully of their property, freedom, and all too often life, it cannot be done honorably.

  • Nephilium||

    You know, if folks cops exercised the same zeal in going after the bad ones cops, folks would not think they needed to record any encounter with any cop for any reason.

    Cleaned that up for you a bit.

  • TheZeitgeist||

    Sounds like Judge Posner needs to have an accident.

  • Mr Whipple||

    The law, the strictest of its kind in the country, makes such recording a Class 1 felony, punishable by four to 15 years in prison.

    Well, fuck me with a glass jar and make me squeeze. Even if one were to accept that it is a crime, which it isn't, there's no way this punishment fits the crime.

  • juris imprudent||

    The Police (and their fellow travellers in the legislature): You will fucking respect our fucking authoritaH! Now stop resisting.

  • Ken Shultz||

    Gee, it's hard to believe that a place like Cook County, what with its reputation for...whatever the opposite of corruption is, would have the harshest law in the nation prohibiting the recording of public officials without their consent.

  • Tulpa the White||

    Actually it's the entire state, not just Cook County.

  • Ken Shultz||

    Gee, it's hard to believe that a place like Cook County, what with its reputation for...whatever the opposite of corruption is, would [feel it necessary to enforce] the harshest law in the nation prohibiting the recording of public officials without their consent.

    Is that really a big difference?

  • Tulpa the White||

    and to communicate effectively with persons whom they speak with in the line of duty

    He's got a point there -- it's hard to communicate with a borderline insane homeless person without beating his head against a curb.

  • PantsFan||

    OT: Another Shit Cop
    Former Winnipeg City Cop pleads guilty to sexual assualt charges. Plea could lead to a conditional sentence.
    "By September 2006, police had announced Dow had been placed on paid administrative leave for accusations of sexual assault. He later retired."

    http://www.winnipegfreepress.c.....92095.html

  • Dumphy||

    Double standard? What double standard?

  • ||

    Don't be a cop-hating libertard. The man was REPRIMANDED, for God's sake! He was prevented from serving the cause of justice, and his pay wasn't even cut! I mean, imagine how guilt-ridden he was! Ugh, you militia insurrectionists make me sick!

  • Tejicano||

    Makes me wonder if we should look forward to the day when some shop owner in the state if ill is charged because his surveillance camera happened to be recording some JBT interaction on his shop's premises.

  • Terrance||

    to protect legitimate privacy interests; ed hardy nederland as applied to the facts alleged here, it likely

  • ||

    Wtf is this?

  • SIV||

    Evolving spambots. Look out for the Second Variety

  • ||

    The II-V... it's... Mary!

  • John C. Randolph||

    One idea I've had for about a year is a statute that prohibits public employees from lying, under penalty a prison term for perjury and permanent ineligibility for any government job or publicly-funded benefits, including retirement. Basically, "if you're on the job, you're under oath."

    Yes, I realize how many current apparatchiki would end up homeless bums if this became law. That's it's key feature.

    -jcr

  • ||

    Fortunately we have a real world example to show what a terrible idea this would be: this is the main tool of oppression that the Singapore government uses against the minor party leaders. They sue them for libel and slander in front of judges they appointed under laws they wrote. They get a judgement they know it is impossible to pay and then throw them in jail for not paying. All the while they get to trash them in the state owned newspaer and on the state owned television stations. You see, they are the ones who get to decide what a lie is and they've decided that calling the government a corrupt one party system is a lie.

  • ||

    this law should lose on constitutional issues. you cannot have a "free press" if people are prohibited from video or audiotaping cops.

    period.

    full stop

    of course the fault FOR the law is legislature, not the cops

  • ||

    Ha, as if they didn't ask for it...

  • ||

    some have,. some haven't. just like with any law, various people disagree. but the law was passed by the legislature. their choice, their responsibility.

  • ||

    I have sympathy for "damn, I wish I didn't have to enforce this law, but it's the law" cops SOMETIMES, because I'm sure lots of them are useful idiots and not malicious, but I could never, ever bring myself to enforce drug laws, for example, or gun laws. Ever. Under any circumstances. So while I understand that far from all cops are malignant tumors upon society, it's beyond doubt that a huge proportion of police work couldn't possibly be called honorable, or anything positive at all, for that matter.

  • ||

    as i have repeatedly explained to the ignorant, enforcement of drug law makes up less than 1% of my job.

    i work patrol.

    we can;t search cars incident to arrest here in WA either, so we can't fish for them.

    your average doctor probably spends a similar proportion of his time with drug violations as i do. considering that 2/3 of the drug cases i get assigned are doctors confirming with pharmacies on prescription fraud by their patients.

  • Invisible Finger||

    Lol

    Yeah, the popos have been trying to get the law changed for so long and that damn legislature just won't cooperate. If only the fop were allowed to record their conversations with legislators we'd see just how benevolent and correct-thinking the police really are.

  • Coeus||

    So what's the deal? Do police unions lobbying for laws that increase their power just not count in your world? Or are you really unaware of how this shit goes down?

    (that question was rhetorical, you're a craven apologist, but you're not that stupid)

  • ||

    of course they count. but i'm not a liberal, coeus. with locus of control comes responsibility. that's the libertarian mindset. cop unions don't pass these laws. legislatures do. fwiw, my union has never supported or proposed such a law, nor do we have one. i am sure some do. they are special interest groups, and just like anybody else - person or group, they absolutely have a right to lobby for legislation, even if i think it is bad.

    but the people with the power to MAKE it a law are the legislature. they have the power, they have the responsibility

    have you researched what %age of unions have advocated for such laws? i suggest not. you are just kneejerking and making assumptions

  • Coeus||

    with locus of control comes responsibility. that's the libertarian mindset.

    Without enforcement, there would be no issue with the law (see: laws still on the books about feeding ducks on Sunday). Seems the ultimate locus of control is with the cops. And don't you dare try to lecture me on the libertarian mindset. You're the moron who simultaneously thinks that he's a libertarian and that "the vast majority of laws are just".

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