Federal court strikes
blow to Illinois eavesdropping law, will allow recordings of police
CHICAGO — In a blow to Illinois’ sweeping eavesdropping law, a federal
appeals court on Tuesday blocked its enforcement in cases where someone is
recording a police officer at work.
It was a victory for activists who had feared that using smartphones or
video cameras to record police responding to demonstrations during this month’s
NATO summit in Chicago could land protesters and bloggers behind bars for
years. It’s also the most serious legal challenge to the measure — one of the
strictest in the nation — and adds momentum to efforts by some state lawmakers
to overhaul the legislation, whose constitutionality has been questioned.
The law, enacted in 1961, makes it a felony for someone to produce an audio
recording of a conversation unless all parties agree. It sets a maximum
punishment of 15 years in prison if a law enforcement officer is recorded.
In a separate decision late last month, the city of Chicago’s chief legal
officer said police did not intend to enforce the law during the May 20-21
summit, but Cook County State’s Attorney Anita Alvarez had not given similar
assurances. Tuesday’s temporary injunction put summit protesters in the clear.
“The Illinois eavesdropping statute restricts far more speech than
necessary to protect legitimate privacy interests,” the U.S. Court of Appeals
for the Seventh Circuit said in its opinion. “As applied to the facts alleged
here, it likely violates the First Amendment’s free speech and free-press
guarantees.”
The ruling stemmed from a 2010 lawsuit brought by the American Civil
Liberties Union seeking to block Alvarez from prosecuting ACLU staff for
recording police officers performing their duties in public places, one of the
group’s long-standing monitoring missions.
“To make the rights of free expression ... effective, individuals and
organizations must be able to freely gather and record information about the
conduct of government and their agents — especially the police,” Harvey
Grossman of the ACLU of Illinois said Tuesday in reaction to the ruling.
He noted that with new technology, it is easier than ever to record and
disseminate images and audio recordings.
“Empowering individuals and organizations in this fashion will ensure
additional transparency and oversight of police across the state,” Grossman
said.
Alvarez’s office said it was preparing a statement, but had no immediate
response to the ruling. The court described her position as “extreme.”
“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. This is an
extraordinary argument,” the ruling read.
Protest organizers praised the court action.
“We have had this just ridiculously long fight with the city around the
right to protest here,” said Joe Isobaker, of the Coalition Against NATO/G-8
War & Poverty Agenda. “And this just serves to confirm the correctness of
our stance, which is that we have the right to speak out against war and greed
and the other evils of our society.”
In the state capital, a Senate bill that would rewrite the law to formally
include an exception for people recording police officers at work in public
places is awaiting a vote in the House. An earlier bill failed in a House vote,
but the measure has been revised to reflect some of the concerns of law
enforcement officials.
One of its sponsors, Rep. Elaine Nekritz, said the right to record police
was vital to guard against abuses.
“I think citizens have First Amendment rights to protect themselves against
an overreaching government and this is one way they can do that,” she said.
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