The Score in Illinois: First Amendment 2, Eavesdropping Law 1

Once again, the CMLP is pleased to report that the First Amendment has scored an important victory in a case involving the recording of police officers in public. Last summer saw the strong pro-First Amendment decision from the U.S. Court of Appeals for the First Circuit in Glik v. Cunniffe (see our coverage here); the spring of 2012 brings us another sunny (and lengthy) decision for freedom of speech from the U.S. Court of Appeals for the Seventh Circuit in today's opinion in American Civil Liberties Union of Illinois v. Alvarez.

(Full disclosure, and a point of pride: the CMLP, through the remarkable services of our colleagues at Harvard Law School's Cyberlaw Clinic, joined in an amicus brief in Alvarez drafted by the Reporters Committee for Freedom of the Press. We have raised many of these arguments ourselves in prior cases -- see the CMLP's brief in Glik.)

Background

The Alvarez case arose out of a "police accountability program" planned by the ACLU of Illinois, which would involve openly making audiovisual recordings of Chicago police officers going about their duties in public. However, the ACLU was concerned that its videographers would be subject to prosecution and imprisonment for a felony under Illinois' expansive eavesdropping law, which prohibits electronic recording of conversations without the consent of all parties. Most troublesome is the definition of "conversation" under the law:

For the purposes of this Article, the term conversation means any oral communication between 2 or more persons regardless of whether one or more of the parties intended their communication to be of a private nature under circumstances justifying that expectation.  

720 ILCS 5/14-1(d) (emphasis added). In other words, the law applies regardless of whether the conversation at issue was intended or could even reasonably be expected to be private. Furthermore, as the Seventh Circuit notes, "[t]he offense is normally a class 4 felony but is elevated to a class 1 felony-with a possible prison term of four to fifteen years if one of the recorded individuals is performing duties as a law-enforcement officer."

Yikes.

Rather than waiting to see if the Chicago police would gently tolerate this public oversight of their activities, as police have in so many other instances, the ACLU filed a federal lawsuit seeking to enjoin the enforcement of the law against them in connection with the "police accountability program." Specifically, the ACLU claimed that the First Amendment protects the right to record the police openly in public, and that the eavesdropping law was unconstitutional.

After a few go-rounds in federal district court over the issue of whether the ACLU was facing a real threat of prosecution, the district court denied the ACLU's request for a preliminary injunction and dismissed the case on the basis that the First Amendment "does not protect a right to audio record." The district court framed its constitutional analysis in terms of the "willing speaker" doctrine, holding that the ACLU's rights when recording were limited to the rights of a listener, and were therefore dependent upon the police officers they might record being willing speakers. Because the eavesdropping law only prohibited recording of those unwilling to be taped, it did not, in the district court's opinion, reach any situation in which the ACLU might have a right to record.

A Right to Record Audio

The U.S. Court for the Seventh Circuit, in a 2-1 split decision, reversed and remanded the case to the district court with an order to grant the preliminary injunction sought by the ACLU.  Skipping past some of the procedural discussion, the Seventh Circuit first rejected the district court's reliance upon the "willing speaker" doctrine:

The district court's reliance on the "willing speaker" principle gets the doctrine right but its application wrong. ... [T]his is not a third-party "right to receive" case. The ACLU does not claim to be an intended recipient of police (or police-civilian) communications or to have a reciprocal right to receive the officers' speech as a corollary of the officers' right to speak. 

Rather, the court held, the ACLU planned to record information for the purpose of sharing that information with the public -- i.e., to facilitate its own speech. From there, it was a short step to finding that the "expansive reach of [the eavesdropping] statute is hard to reconcile with basic speech and press freedoms."

The Seventh Circuit's analysis is less exuberant in its support of a First Amendment right to record than the First Circuit's decision in Glik (possibly because Alvarez did not arise from an actual arrest and the attendant outrage at police officers who should have known better), but it has other important virtues. It is thorough, logical and solid, spending significant time examining the role that recording plays in the exercise of freedom of speech and why protecting recording of the police is fully consistent with the traditions and principles of the First Amendment.

Let's walk through it.

The court started from the principle that disseminating audio and video is an act protected by the First Amendment:

Audio and audiovisual recording are media of expression commonly used for the preservation and dissemination of information and ideas and thus are "included within the free speech and free press guaranty of the First and Fourteenth Amendments."

But, the court held, you can't exercise the right to broadcast audio if the state could simply prohibit you from making audio recordings:

The right to publish or broadcast an audio or audiovisual recording would be insecure, or largely ineffective, if the antecedent act of making the recording is wholly unprotected, as the State's Attorney insists. ... [T]he eavesdropping statute operates at the front end of the speech process by restricting the use of a common, indeed ubiquitous, instrument of communication. Restricting the use of an audio or audiovisual recording device suppresses speech just as effectively as restricting the dissemination of the resulting recording.

Thus, the First Amendment must protect creation of audio recordings as well: 

Criminalizing all nonconsensual audio recording necessarily limits the information that might later be published or broadcast -- whether to the general public or to a single family member or friend -- and thus burdens First Amendment rights. If, as the State's Attorney would have it, the eavesdropping statute does not implicate the First Amendment at all, the State could effectively control or suppress speech by the simple expedient of restricting an early step in the speech process rather than the end result. We have no trouble rejecting that premise. Audio recording is entitled to First Amendment protection.

The ACLU's argument in favor of First Amendment protection for audio recordings is further buttressed, in the Seventh Circuit's view, by the fact that the Supreme Court has recognized that newsgathering is, to some degree, protected by the First Amendment. The court then reached back to Thomas Gordon and Thomas Cooley to explain the particular importance of newsgathering about public officials. Check out this language from Gordon:

[T]o do publick Mischief, without hearing of it, is only the Prerogative and Felicity of Tyranny: A free People will be shewing that they are so, by their Freedom of Speech. ... so it is the Interest, and ought to be the Ambition, of all honest Magistrates, to have their Deeds openly examined, and publickly scann'd.

And uploaded after scanning, hopefully.

(Sorry, couldn't resist.)

Ahem.  In any event, the court ties up the analysis neatly:

In short, 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. 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.

Then, with a tip of the hat to the Glik decision, and a side note that it doesn't matter whether the eavesdropping law is a law of general applicability because it imposes a "far from incidental" burden on First Amendment rights, the court goes on to consider whether the law can survive the scrutiny leveled at statutes that restrict speech.

First Amendment Scrutiny

Ah, but what level of scrutiny? The famously difficult-to-beat "strict" scrutiny imposed on regulations that target speech based upon its content or viewpoint? Or the lesser "intermediate" scrutiny used to evaluate content-neutral restrictions on speech?

Well, the court wasn't convinced that the eavesdropping law discriminated on the basis of content. This was despite the fact that there are exceptions in the law for the police making their own recordings (the ACLU justifiably asked why it was okay for the cops to record citizens, but not for citizens to record the cops, but the Seventh Circuit said that wasn't the kind of discrimination that required strict scrutiny) and for the media when incidentally recording ambient sound at public events (which gave the court greater pause).

Ultimately, though, the court punted on the question by saying that it didn't matter whether the law was content-neutral or not, because the eavesdropping law was unlikely to survive even "intermediate" scrutiny.

To survive intermediate scrutiny, the court held that the eavesdropping law must satisfy three requirements:

(1) content neutrality (content-based regulations are presumptively invalid); (2) an important public-interest justification for the challenged regulation; and (3) a reasonably close fit between the law's means and its ends. This last requirement means that the burden on First Amendment rights must not be greater than necessary to further the important gov- ernmental interest at stake.  

For the purposes of discussion, the Seventh Circuit assumed (1), and held that the state satisfied (2). According to the court, "The State's Attorney defends the law as necessary to protect conversational privacy. This is easily an important governmental interest." However, the court found that the eavesdropping law fell flat on (3), because the statute prohibited recording without regard to the privacy interests that allegedly justified the law:

Simply put, these privacy interests are not at issue here. The ACLU wants to openly audio record police officers performing their duties in public places and speaking at a volume audible to bystanders. Communications of this sort lack any "reasonable expectation of privacy" for purposes of the Fourth Amendment. ... [D]issemination of these communications would not be actionable in tort. 

...

Of course, the First Amendment does not prevent the Illinois General Assembly from enacting greater protection for conversational privacy than the common- law tort remedy provides. Nor is the legislature limited to using the Fourth Amendment "reasonable expectation of privacy" doctrine as a benchmark. But by legislating this broadly -- by making it a crime to audio record any conversation, even those that are not in fact private -- the State has severed the link between the eavesdropping statute's means and its end. 

Driving home that point was the fact that the State conceded that there would be no prohibition against recording police officer conversations by non-electronic means (paper and pencil, for example), taking pictures, and then reconstructing the dialogue later. Although the court noted the difference in accuracy and immediacy of audio recordings, it found that these differences were insignificant in terms of the State's asserted privacy interests.

Because the State could not articulate an important state interest actually served by applying the statute to the ACLU's planned activity, the Seventh Circuit held that the statute was likely to fail intermediate scrutiny. Accordingly, it held that the district court erred in denying the ACLU the preliminary injunction that it sought, and remanded with instructions to grant that injunction.

A Long-Expected Dissent

That's not quite the whole story. As many observers of this case anticipated after his statements during oral argument, Judge Posner dissented from the court's opinion. I am going to skip over his suggestion that the majority opinion is a short step from legalizing, among other things, child pornography and copyright infringement (good to know you've got the MPAA's back, your Honor, but I think judges can tell the difference). Rather, I want to look at how the majority responded to his concerns about people who intend to speak privately even when in public, and private citizens who might be deterred from approaching the police in public if someone is recording.

With respect to the first concern, the majority noted that ACLU was planning to record openly, so those who wanted to speak privately would know to move away. Because the case at hand did not involve secretly-made recordings, the majority unfortunately did not resolve the question of whether such recordings would be protected by the First Amendment, at least where those recorded did not have a reasonable expectation of privacy in their conversations. Rather, the court simply dropped a footnote stating that secret recordings might be balanced differently against the State's asserted privacy interests.

With respect to the second, the majority said that "anyone who wishes to speak to police officers in confidence can do so; private police-civilian communications are outside the scope of this case." That one, to be fair to Judge Posner, is a bit murkier. A police officer might find themselves in conversation with a civilian at any time, and it is unclear from the majority's comment what the ACLU is supposed to do if a member of the public approaches an officer for help. Similarly troubling is this statement by the majority:

It goes without saying that the police may take all reasonable steps to maintain safety and control, secure crime scenes and accident sites, and protect the integrity and confidentiality of investigations. While an officer surely cannot issue a "move on" order to a person because he is recording, the police may order bystanders to disperse for reasons related to public safety and order and other legitimate law-enforcement needs.

Unfortunately, I suspect it won't be long before another judge inserts a "merely" before the phrase "because he is recording." It would then only remain to be seen how broadly police and judges in Illinois will interpret "legitimate law enforcement needs."

Conclusion

I don't want these minor reservations to put a damper on an exceptionally well-reasoned and supported opinion. The Seventh Circuit, like the First Circuit before it, has strongly affirmed the right of citizens to record the activities of law enforcement, and that makes this a good day.

Jeff Hermes is the Director of the Citizen Media Law Project, and will sleep soundly tonight.

(Photo courtesy Flickr user Pandaposse under a Creative Commons license.)

Last updated on December 4th, 2012

   
 
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