This article first appeared in the St. Louis Beacon, May 26, 2012 - The Illinois General Assembly is working to change the state's eavesdropping law to allow citizens to record police and other public officials in public. Currently, audiotaping without the permission of everyone involved in a conversation is a felony in Illinois.
Earlier this month, the 7th U.S. Circuit Court of Appeals ruled that the Illinois law - viewed as the toughest in the nation - could not be enforced as written because it barred recording of public officials' actions in public. The decision was handed down just before the NATO meeting in Chicago, which attracted large protests and citizen-police confrontations.
A 2-1 majority on the federal appeals court held that the current law likely violates the First Amendment because people probably have a First Amendment right to record the things public officials do in public. Two Illinois state courts have found the law unconstitutional and a federal appeals court in Boston ruled a similar Massachusetts law unconstitutional.
Last week, the Illinois House passed a bill to fix the problem by allowing citizens to record police in public as long as the recordings are not altered. But the bill ran into problems in the Senate where the sponsor wants to add provisions to ensure that police can record citizens. That dispute could be worked out in the next few days before the end of the legislative session.
Illinois is one of a number of states with so-called "all party consent" laws, requiring everyone who is a party to a conversation to agree to its taping. The law doesn't apply to videotaping, but most video equipment records audio as well, and that violates the law.
Illinois has enforced the law much more vigorously than other states, prosecuting street performers, citizens complaining of police misconduct and citizens seeking to record the actions of public officials in courts or public buildings.
The law is opposed by the Illinois Bar Association and the Illinois Press Association, both of which favor the legislative fix. Police associations have supported the law in its current form, suggesting that recording can interfere with police actions. The 7th Circuit case was brought by the ACLU, which has a program in Illinois of recording citizen-police confrontations.
The two-judge majority on the appeals court said, "The Illinois eavesdropping statue restricts far more speech than necessary to protect legitimate privacy interests." For that reason, it likely violates the First Amendment's free speech and free press clauses, the court said.
The dissenter was Judge Richard Posner, a highly regarded conservative judge. He said that courts should not strike down laws as often as they do. His dissent, which provoked considerable comment in constitutional law circles, suggested that federal courts had expanded the First Amendment far beyond its original meaning.
Posner wrote: "Judges asked to affirm novel 'interpretations' of the First Amendment should be mindful that the constitutional right of free speech, as construed nowadays, is nowhere to be found in the Constitution. The relevant provision of the First Amendment merely forbids Congress to abridge free speech, which as understood in the eighteen century meant freedom only from censorship."