Michael Allison, an Illinois man who faced a potential sentence of 75 years in prison for recording police officers and attempting to tape his own trial, caught a break last week when a state judge declared the charges unconstitutional. "A statute intended to prevent unwarranted intrusions into a citizen's privacy cannot be used as a shield for public officials who cannot assert a comparable right of privacy in their public duties," wrote Circuit Court Judge David Frankland. "Such action impedes the free flow of information concerning public officials and violates the First Amendment right to gather such information."
Allison, who figures prominently in Radley Balko's January cover story about "The War on Cameras," recorded his interactions with police officers during a long-running dispute over cars he was working on at his home in Bridgeport and his mother's home in Robinson. When he was cited for violating Robinson's "eyesore" ordinance, he brought a tape recorder to his trial because he had been informed that there would be no official transcript of the proceedings. The judge accused Allison of violating her privacy, thereby committing a felony punishable by up to 15 years in prison under the state's eavesdropping law; she threw in four more charges after discovering that he had recorded his police encounters as well.
Judge Frankland ruled that Allison had a First Amendment right to record the police officers and court employees. And while a ban on recording devices in the courtroom might be justified, he said, the eavesdropping charge was inappropriate. As applied in this case, Frankland said, the eavesdropping law "includes conduct that is unrelated to the statute's purpose and is not rationally related to the evil the legislation sought to prohibit. For example, a defendant recording his case in a courtroom has nothing to do with an intrusion into a citizen's privacy but with distraction."
A few days before Frankland's ruling, the U.S. Court of Appeals for the 7th Circuit heard a First Amendment challenge to the eavesdropping statute, one of the country's strictest. Last month a Chicago jury acquitted a woman who was charged with eavesdropping after she recorded a conversation with internal affairs officers to document that they were encouraging her to drop a sexual harassment complaint. Also last month, in a case involving a Boston man charged with eavesdropping for capturing an arrest on his cell phone, the U.S. Court of Appeals for the 1st Circuit said such recording is a "basic and well-established liberty safeguarded by the First Amendment." Yesterday I noted a California case where exercising that right led to a California man's acquittal.
The 1st Circuit's decision is here (PDF). Reason.tv covered camera-shy cops (without triggering any felony charges) in May: