This article first appeared in the St. Louis Beacon, Nov. 30, 2012 - For the time being at least, Chicago police cannot arrest citizens who audio tape police stops in public as part of an American Civil Liberties program scrutinizing police conduct.
The U.S. Supreme Court turned down a Chicago prosecutor's attempt to revive Illinois' restrictive eavesdropping law that made it illegal to audio record police stops in public. That leaves standing a federal appeals court ruling that the nation's most restrictive eavesdropping law probably violated the First Amendment.
The Supreme Court's action, taken without comment on Monday, does not indicate approval or disapproval of the appeals court decision -- though multiple news reports indicated it did. But the court's action has the practical effect of leaving in place the decision of the 7th U.S. Circuit Court of Appeals in Chicago, which said the law interfered with freedom of expression.
For the time being, the law probably is a dead letter when it comes to prosecuting those who audiotape the actions of public officials, such as police officers, in public settings, such as police stops. But the statute still is good law when it comes to private conversations. For example, a news reporter or a citizen would be violating the law by recording a telephone conversation with another person who had not consented to the taping.
The case began when the American Civil Liberties Union of Illinois went to court seeking an order instructing Chicago authorities not to enforce the law against ACLU volunteers who had begun taping police stops. The program was similar to one launched and then abandoned by the ACLU of Eastern Missouri in St. Louis.
A lower court judge threw out the Illinois ACLU suit twice, but the federal appeals court in Chicago ruled in May that the ACLU was entitled to a temporary court order -- a preliminary injunction -- instructing Chicago authorities not to enforce the law against the ACLU. The court ruled 2-1 that the ACLU was entitled to the injunction because the law "probably" violated the First Amendment in criminalizing the audiotaping of public actions of public officials.
The court did not definitively rule that the law was unconstitutional because that was not the issue at the preliminary injunction phase of the case. The only issue was whether the ACLU probably would prevail and therefore was entitled to the injunction.
But the long opinion by the court left little doubt that it considers the law a violation of the First Amendment. The court said, "The statute specifically targets a communication technology; the use of an audio recorder — a medium of expression — triggers criminal liability. The law’s legal sanction is directly leveled against the expressive element of an expressive activity."
The court pointed out that the Supreme Court had ruled in the Ladue sign case from St. Louis two decades ago that a government can't outlaw a mode of expression -- in that case, placing a protest sign in a residential window. One can't separate Peter Zenger's printing press from the anti-British articles published on it or Picasso from the brushes used to paint his masterpieces or Beethoven from the woodwinds that played his pieces, the court said. Nor can political speech be separated from the money needed to buy political ads. In other words, the modes of expression are protected along with the expression. So with the audio recorder.
The court also said that audio recording was similar to news gathering, which itself has some First Amendment protection.
After the 7th Circuit decision in May, Cook County State's Attorney Anita Alvarez filed the appeal asking the Supreme Court to overturn the ruling. She said it extended "a novel and unprecedented First Amendment protection to ubiquitous recording devices." This, in turn, "diminished the conversational privacy of speakers in favor of a heretofore unrecognized First Amendment right to audio record the discussions of such speakers," Alvarez claimed.
Now that the Supreme Court has turned aside Alvarez's appeal, the case goes back to the lower court where the ACLU will ask the court to make the temporary restraining order permanent.
Two state courts in Illinois also have found the eavesdropping law unconstitutional. But attempts in the legislature to address the courts' concerns have faltered, partly because of opposition from police unions.
After Monday's U.S. Supreme Court action, state Rep. Elaine Nekritz, an opponent of the law, said further legislative action might be unnecessary because of the court actions. "If it's unenforceable, it's unenforceable," the AP quoted the Northbrook Democrat. "I think (the law's opponents) would be pretty happy with that" and wouldn't feel the need to strike it formally from the books, she said.
Most states, such as Missouri, allow conversations to be recorded as long as one party to the conversation consents. That means that a newspaper reporter in Missouri, for example, generally can record a telephone conversation without getting the consent of the person on the other end of the line. The reporter has his or her own consent for the taping.
Twelve states require the consent of two or more parties for eavesdropping. Illinois, Maryland and Massachusetts have the toughest interpretation and enforcement. The other nine states have an exception to the law that allows recording of public police conversations.
In Maryland, one of the three states with tough laws, the state attorney general has issued an opinion indicating that those taping officers in a way that does not interfere with their work should not be prosecuted. In Massachusetts, a federal court ruled that a state law could not be used by Boston police to arrest a man who used his cell phone to film police making an arrest on the Boston Common. Now Illinois courts appear to have closed off the possibility of prosecuting people for recording police stops.