The First Amendment vs. the War on Cameras

As Jacob Sullum reported last week, the U.S. Court of Appeals for the 7th Circuit issued a preliminary injunction against Illinois' controversial eavesdropping law, which made it a felony to record on-duty police officers in public. Judge Richard Posner, an influential federal judge and notable figure in the field of law and economics, filed a dissent in the case, arguing that the First Amendment provides no protection against the state law. Writing at The First Amendment Center, Douglas Lee takes aim at Posner's dissent:

Those fond of the First Amendment should be glad that Richard Posner isn't in charge of interpreting it….

Pointing to a long list of circumstances in which regulation of speech is permitted — including child pornography, securities fraud and laws making medical records confidential — Posner argued that Illinois should be allowed to add to that list a prohibition against recording conversations between police officers and members of the public in public places.

"The constitutional right that the majority creates 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," Posner said. "A fine line separates 'mere' recording of a police-citizen encounter (whether friendly or hostile) from obstructing police operations by distracting the officers and upsetting the citizens they are speaking with."

Given the extent to which law enforcement agencies record civilians during investigations, arrests and interviews, it seems somewhat ironic to claim that recording police personnel in public places will somehow adversely affect personal privacy and public safety. In any event, the notion that reporters and others have a First Amendment right to film and write down what they see in public places but not the right to record what they hear in those same places is difficult to understand and justify.

Read the rest here. For more on the legality of recording the police, see Radley Balko's "The War on Cameras" and Steve Silverman's "7 Rules for Recording Police."