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]