Supreme Court

Trump SCOTUS Contender Diane Sykes on the 1st Amendment Right to Record the Police

A review of Judge Sykes's majority opinion in ACLU of Illinois v. Alvarez.

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Wisconsin Court System

Judge Diane Sykes of the U.S. Court of Appeals for the 7th Circuit is one of the 21 names floated by President-elect Donald Trump as a possible replacement for the late Justice Antonin Scalia on the U.S. Supreme Court. Most conservatives would probably welcome a Sykes nomination, as she is a respected figure on the legal right and a favorite among the Federalist Society's rank and file. But liberals—or at least those liberals who genuinely care about civil liberties and criminal justice reform—might also find at least one reason to cheer a Sykes nomination. That reason is Sykes's role in advancing the First Amendment right to record the police. Here's the story.

In 2012 the U.S. Court of Appeals for the 7th Circuit decided the case of American Civil Liberties Union of Illinois v. Alvarez. At issue was an Illinois "eavesdropping" statute that made it a felony offense, punishable by as many as four to 15 years in prison, for recording "all or any part of any conversation" without first receiving the consent of all parties to that conversation.

The ACLU of Illinois had a big problem with that statute. The organization had recently formed a Chicago-area "police accountability project" whose objectives included recording police officers, without their consent, while those officers were carrying out their official duties in public. To prevent its people from being prosecuted as felons, the ACLU of Illinois filed suit in federal court against Cook County State's Attorney Anita Alvarez, seeking an injunction that would bar Alvarez from enforcing the eavesdropping law against individuals whose only "crime" was the act of recording the police in public. To enforce the eavesdropping statute in such a manner, the state ACLU insisted, would be a fundamental violation of the First Amendment.

Reason

State's Attorney Alvarez took a different view. In the words of Judge Diane Sykes, who wrote the 7th Circuit's majority opinion in the case, "the State's Attorney has staked out an extreme position. She contends that openly recording what police officers say while performing their duties in traditional public fora—streets, sidewalks, plazas, and parks—is wholly unprotected by the First Amendment."

Judge Sykes then proceeded to explain why the state's attorney was wholly wrong about the scope of this constitutional provision. "The eavesdropping statute restricts a medium of expression—the use of a common instrument of communication—and thus an integral step in the speech process," Sykes wrote. "As applied here, it interferes with the gathering and dissemination of information about government officials performing their duties in public. Any way you look at it, the eavesdropping statute burdens speech and press rights and is subject to heightened First Amendment scrutiny."

Judge Sykes then issued a preliminary injunction forbidding the state's attorney from applying the statute in that manner. Two years later, in a decision that both cited and quoted repeatedly from Judge Sykes's Alvarez opinion, the Illinois Supreme Court struck down the state's eavesdropping statute as an overreaching violation of the First Amendment. It was a major victory for free speech, civil liberties, and criminal justice reform and it came about thanks in no small part due to the judgment of Diane Sykes.

Related: The Trouble With Trump SCOTUS Contender William H. Pryor

NEXT: Sherri Papini Sex-Trafficking Evidence Almost as Flimsy as PizzaGate Proof

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  1. Just when you thought Trump couldn’t sink any lower, he declares war on cops.

    1. Blue Lives Matter Donald!

        1. How are cops supposed to safely go to work every day if they are going to be caught beating citizens senseless for no reason on video tape?

          Trump is a danger to society! He must be stopped!

          1. This decision was a mistake, and Trump will certainly remove this woman from the list, because it is quite obvious that ordinary people don’t have the right to record the police, any more than they have the right to troll around the Net and send out inappropriately deadpan Gmail “parodies” of distinguished members of the academic community. Surely no one here would dare to defend the outrageous “First Amendment dissent” of a single, isolated judge in America’s leading criminal “satire” case? See the documentation at:

            http://raphaelgolbtrial.wordpress.com/

        2. Ooooh I’m remembering this. Too good to not copy. Thanks!

    2. Back the badge!!!

    3. This is no joke. Police officers believe that when you record them, you steal pieces of their souls. This is a travesty.

      1. So………they’re going to get in a snit when they discover my black market trading of cop soul fragments?

    4. A war on cops? Are you serious? Recording a public employee doing their public job is hardly a war.

  2. Good! Loving it. But can we start penalizing cops who violate the First when they arrest bystanders, since “you can beat the rap but you can’t beat the ride”?

  3. No, you lying POS, she lost because she stinks!

    “Obama orders review of election hacking”
    […]
    “Since Trump’s victory, Democratic lawmakers on the Senate intelligence committee have been pushing Obama to declassify more information about Russia’s role.”
    http://www.sfgate.com/news/pol…..785695.php

    Yeah, they want to know what happened to Elvis’ alien love-child, too!

    1. They want to sow enough doubt to undermine the incoming administration. It has nothing to do with anything else.

      1. I don’t think so. Seems to me they’re still trying to find a reason she lost other the fact that she smells to high heaven.
        The proggies willfully refused to see that baggage train she had tied to her ass, and hoped their denial was sufficient to convince the great-unwashed that it really didn’t exist.
        Surprise! The NYT’s misdirection didn’t confuse enough voters to hand it to her.

        1. yeah the DNC did bumlick her, like a lot of Dems, but don’t forget she faced scathing criticisms from the Bernie crowd and alienated a lot of millennials (just look at the election demographics) – i doubt they were blind to her scandals

          and, although there’s an element of sore loser in this investigation thingy, wouldn’t you wanna be absolutely certain whether or not a foreign power tries to manipulate the elections (inb4 george soros)?

          1. The likelihood that Russia was trying to undermine our democratic process is about as likely as Obama descheduling pot before his last day in office.

          2. Has the US influenced any elections in other countries? I think we’ll all agree it has. I’m not saying that one wrong justifies another. However, can we honestly say that governments with significant power don’t try to influence elections or other important decisions in other countries on a regular basis? That being said, what makes this singular election more important than all other decisions where outside influence may have been levied?

            This election wasn’t any more important than any other regardless of what the media barked. As said above, the only excuse the POTUS could have is to influence the next administration. If we can reasonably assume this investigation would have been deemed unwarranted if the Dems had won then we now it is also without merit when the Republicans won.

            So no, I couldn’t care less what foreign powers attempted to do.

          3. I can tell you very easily why Russia or any other national power wouldn’t have done this. They would hold this information as the proverbial ace in the sleeve so they could use it in the event of that person being elected. Information like that is far more useful as a tool for blackmail than it is to sway the election. I could be wrong, as it was pretty clear that Hillary had it in for Russia, and Russia would want Trump over Hillary for that sole reason… but I still think that information would have been far more useful to hold over her head should she have been elected.

      2. I think Sevo’s right. They simply cannot accept that Hillary was at all flawed. The very concept was alien to them a year ago, and it’s even more alien now. They’d have to think for a change, and that’s too painful.

        1. What’s scary is that I know a lot of “progressives” who were against Hillary early on; they supported Bernie or one of the other Dem candidates. But as soon as Hillary got the nomination, they put all that shit aside and gave her their full-throated support.

    2. Look, Sevo, we KNOW Jill Stein would have uncovered 10 million votes for her in Wisc, Mich and Penn IF ONLY those meddling Republicans would just agree to a recount.

    3. How about they declassify documents about Hillary’s and Podesta’s dishonesty and incompetence?

  4. i only occasionally pay attention to judges – and its usually only ever in the context of some ‘big decision’ which prompts me to look into what motivated a given jurist to make an either ‘spectacularly good or bad’ call.

    My general impression is that there is basically Nobody – regardless of what their judicial principles are – who has ever ruled 100% consistent with their own political philosophy.

    meaning: someone could be a very strict legal-conservative… and yet if you dig long enough, you’ll find rulings where they basically “made law from the bench” and injected ideas into a decision which were never present in the given law or in any precedent. Similarly, you can find avowed civil libertarians who on occasion hand a lopsided ruling in favor of authorities who blatantly violate people’s rights.

    Basically, the point is that it seems to me that a jurists “personal principles” often take a backseat in the process of dealing with a gamut of legal questions. I think a lot of the time, the lawyers with the “better-principled” legal-argument simply fail to make good arguments, and the judge has to grant the win to the side with the better-sourced, more-technical case.

    Which is why i think merely just scanning a list of cases that a judge has ruled on – which seems to be the standard approach w/ potential nominees – is never sufficient. I think character & temperament, and methodical approach are probably more important, but harder to easily summarize.

    1. I’ll take that a step further and note that SCOTUS judges have regularly voted the opposite way in situations where one would think they would remain politically consistent with whomever nominated them. The most glaring example would be Roberts and the ACA “penaltax” case. I get left scratching my head about Justice Thomas and his consistent defense of law enforcement over reach, yet he still remains one of the few liberty defending justices left.

      1. I get left scratching my head about Justice Thomas and his consistent defense of law enforcement over reach, yet he still remains one of the few liberty defending justices left.

        I too am continually amazed when people do their job.

    2. I’m not so sure it’s as brief of a review as you might think. Recall that Mark Levin did this job in the Reagan administration, and I don’t see guys like him just scanning through a list of cases. He might be an exception, he’s the only person I specifically know of who’s done that job, but I imagine there’s a lot more vetting than just a brief examination of cases.

    3. In a looter mixed economy integrity is by definition a euphemism for radical extremism. Therefore you can choose communist hypocrites one election and christianofascist hypocrites the next. What could be more balanced and even-handed?

  5. Judge Sykes then issued a preliminary injunction forbidding the state’s attorney from applying the statute in that manner.

    That’s a start. What about citizens who lost their jobs and other parts of their lives for being jailed by cops who applied that statue anyway? It’s not like cops face any penalties for maliciously charging people with non-crimes when they feel disrespected. The process is the punishment.

  6. Honestly, I think she got it wrong that this is a 1A issue. This is a 5A issue. going to the accuseds’ right to gather evidence to defend themselves.

    1. Not all amendments are made equal. There’s more cultural reverence for the 1st than for that element of the 5th, even if not fully acted upon. The law violated multiple provisions of both, and it was not wrong to pick the one more persuasive to higher courts with which to strike it down.

      1. No sense in fighting for liberty with one hand tied behind your back.

    2. The 5th wasn’t even brought up in the lawsuit, so the courts have no reason to mention it.

  7. the left will crucify her as an uncle tom self-hating unwise latina.

    let’s hurry up and confirm her.

  8. And she would be the first female justice since Sandra Day O’Conner who is not burn victim ugly. We would have a Supreme Court Justice for John Riggins to get drunk and hit on again.

    1. What, you don’t find power attractive?

      1. Maybe a little but have you seen Kagan, the Wise Latina and the Notorious RBG? It isn’t that attractive, not even for Crusty.

        1. Leftists women are almost universally fugly. All that hate and envy bottled up in someone eventually spills over to the outside.

          1. It is really true. Not all right wing women are hot, but a few of them are. And they are usually at least pleasant looking. This women isn’t a raving beauty but you don’t want to look away in horror when you see her. If you look at this woman, Nikki Haley, McMahon, and the women Trump put in at Education, they are all at least pleasent looking women. Now compare them to Kagan, the Wise Latina, Lynch, Napolatano and the rest of the women Obama put in. Good God, it is terrifying.

            1. When Janet Napolitano was born, one of the attending nurses unwrapped a fresh Ugly Like A Motherfucker, wrapped it up with a thick layer of What In God’s Name Am I Looking At, and just smashed her little baby face repeatedly.

            2. Janet Reno comes to mind when the word ‘ugly’ is used.

          2. That’s pretty true if you limit it to politicians and judges. But not really in general.

            1. That is who I meant.

              1. I figured. And it really is pretty striking. I’m trying to think of any decent looking (in a middle aged woman sort of way) Dem politicians and I’m having a hard time. I suppose Maggie Hassan isn’t terrible looking.

                1. Tulsi Gabbard (D- Hawaii) is a major babe.

          3. Careful! A progressive might say this discussion veers a little in the direction of misogyny! Someone might get upset!

    2. Yep, she would be the only at least fairly attractive justice. Which will make lefties hate her even more.

      1. You’re wrong. Alito’s got it goin’ on.

        1. She’s a weird looking chick, looks sorta manly like Kagan.

      1. Riggins is by all accounts kind of an asshole. But you can’t help but admire a guy who chats up a Supreme Court Justice.

        1. Asshole, maybe, but that was one heck of a football team.

          1. He was a hell of a player. He actually was the charity auctioneer for an event my wife ran. I met him briefly. He is wildly charismatic. He is the guy women want and men want to be.

  9. I have been a “fan” of Sykes for a long time. She is no libertarian, but sometimes close enough is close enough.

    1. She would immediately be by far the most Libertarian Justice on the court. She may not be perfect but she would be one hell of an improvement.

    2. And in an ideal world, the Scalia appointment would go to someone else and then sometime this summer the Notorious RBG would keel over and her seat would go to Sykes. The prog tears of watching a right wing woman replace a feminist icon would be delicious.

      1. If Ginsburg died on the bench, how long do you think it would take anyone to notice, given her predilection toward napping?

        1. When she stayed there over the recess.

        2. A couple of weeks when the janitors noticed she smelled a bit more pungent than usual.

      2. She must be at least 1000 years old now, John. Hell, she’s never going to die. I bet they have to check her pulse every hour or so just to make sure she’s still alive.

      3. It would be Clarence Thomas part II.

        1. What, is pajama boy going to show up before Congress and say that while he was her clerk she asked him if there was a pubic hair on his coke can?

          1. That dog won’t hunt.

            Everyone knows Pajama Boy shaves his nethers in order to more closely resemble the prepubescent girl he longs to be.

      4. RBG will stay alive for as long as it takes just out of spite.

        We really need term limits for SCOTUS; even better, direct elections, say, every 12 years.

        1. Given that so many of you here want to let unlimited illegals in just because, and that democrats make sure they get to vote illegally in most of the country, that is a horrible idea.

    3. How about Janice Rogers Brown? A black woman, daughter of Alabama sharecroppers, how could anyone say no?

      1. I would love that. They say Thomas wants to retire. Let her replace Thomas. Give lefties another black person to hate.

        1. And hate her they do, as she’s quite the libertarian. Getting her confirmed took a long time.

      2. That would be the best. Sadly, I don’t think it will happen.

      3. Didn’t Bush the lesser nominate her?

        1. Oops- he nominated her to her current position, not as a SC judge.

          1. Yeah. Time for her apotheosis.

        2. You mean Waffen? Dunno, but he certainly tapped the federal teat for subsidies to antichoice nazis faith-based political organizations–and packed them into faith-based government bureaucracies and armed enforcement units.

  10. At the rate this fucking comb-over Oompa Loompa is going, I may have to put a fucking Trump yard sign out in 2020. Can’t he just go on some racist tirade so I can go back to hating on him?

    1. Why not both?

      1. “Racist Bastard 2020”?

    2. Great minds discuss ideas. Average minds discuss events. Small minds discuss people.

      1. Great minds discuss ideas.

        They sure do! They talk about how they love ideas like eugenics, Catholic moral theology, and Marxist future history.

        I’ll rather be small-minded, thank you!

        1. Hank is the ginchiest. He raves about the Garfield administration at length and GOP prohibitionism. All while attacking religion. That he manages to do so in a consistently incoherent manner is impressive in its own way.

  11. Eh, who cares. Trump’s just going to nominate his sister instead.

  12. The Think Progress pants shitting over this woman is wonderful.

    Like Pryor, Sykes, who currently sits on the Seventh Circuit, backed a voter ID law. She also wrote a decision expanding religious objectors’ ability to limit their employees’ access to birth control coverage that SCOTUSBlog’s Lyle Denniston described as “the broadest ruling so far by a federal appeals court barring enforcement of the birth-control mandate in the new federal health care law.”

    Sykes’ most revealing opinion, however, may be her argument in Christian Legal Society v. Walker that anti-gay groups have a constitutional right to continue receiving government subsidies even if they engage in discrimination. Indeed, Sykes’ opinion went so far as to deny that the anti-gay organization at issue in this case engaged in prohibited discrimination at all, because it made an exception to its discriminatory policies for gay people who refrain entirely from having sex:

    http://thinkprogress.org/meet-……8h3tq0adr

    She is a monster!!!

    1. such a broad ruling. unlike the mandate, which wasn’t broad at all, so shut up, all you guys paying for birth-control-insurance.

    2. It’s so stupid that people think “declining to provide employee coverage for birth control” is the exact same thing as “denying access to birth control”. If I remember right, the ACLU had a press release saying that the Supreme Court ruling regarding employer coverage of birth control was tantamount to “corporations taking away womens’ rights to make decisions about their health”.

      It’s funny that this logic doesn’t fly in any other area. The 2A says that I can own a gun. But does this mean my employer has to have some kind of program where I am reimbursed for the cost of guns that I buy? Are they violating my rights by just giving me money instead of gun store gift cards?

      1. If it wasn’t for insurance and the medical monopoly, birth control pills would cost as much as aspirin.

  13. And Dianne is divorced. She is on the market.

  14. “But liberals?or at least those liberals who genuinely care about civil liberties and criminal justice reform?might also find at least one reason to cheer a Sykes nomination.”

    So… a couple dozen people?

    1. Another aching 1932 prohibitionist conservative selling Hitler’s pronunciation of “liberal.” The Republican Party that voters bitch-slapped with FDR until the poor bugger was dead immediately joined Germany’s Christian National Socialists once the divisive felony beer issue was taken off the chessboard. But they did this because the American Liberal Party, in defending individual rights against the Wizened Christian Temperance Union, Ku-Klux-Klan and Anti-Saloon League, handed the Dems the repeal plank they needed to win the next 5 elections. If the Dems had followed the Libertarian lead now the way they’d taken their cue from classical Liberals in 1932, women would have their first president in the electoral college vote. Instead the Dems copied the Econazi Green Party with its Global Warming Meltdown China Syndrome…

      1. This seems to warrant an application of Poe’s law.

      2. Hank, we need to find you a time machine and send you back to the early 30’s. You’re obsessed enough with that time period. Is that because it’s the one history paper you ever wrote before you completely lost your shit?

  15. Damn it. Trump can’t keep up nominating people like this; he’s got a reputation to uphold!

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  18. So her homeskool got as far as “abridging the freedom of speech” but stopped short of the 13th (forced labor and involuntary servitude) and the 14th “All persons born…” The fact remains that this particular mystic is a wannabee violator of the individual rights of other women. Just because she gives a partial pass to the one Amendment in the Bill of Rights our homegrown Christian National Socialists seize upon as license to set up tax-free Hitlerjugend brainwashing centers to torment children into superstitious terror does not a liberal or libertarian make. Stopping the Gestapo from beating and jailing a camera-user while others are filming the beating is spin control and damage-limitation. That is opportunistic Nazi partisanism, NOT the defense of individual rights.

    1. C’mon, y’all, look on the bright side, at least The Donald is tapping into his “binder full of women”, wouldn’t you like to tap into them, too?

      Slightly related? You know, the media skewered Mitt Romney 4+ years ago for mis-speaking about his “binders full of women” instead of “binders full of women’s resumes”?

      Well anyway, I heard that The Donald is bragging about His newest “binders full of women”, now, as well, except? HIS newest “binders full of women” are for candidates for his next series of trophy wives!!!

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    Video evidence against the government? No way!

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