First Amendment

Ill. Eavesdropping Law Can't Be Used to Stop Public Recordings of Cops, 7th Circuit Says

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A Chicago-based federal appeals court has blocked Cook County prosecutors from using an Illinois eavesdropping law against people who make audio recordings of police performing their public duties.

The 7th U.S. Circuit Court of Appeals ruled for the American Civil Liberties Union in a 2-1 decision on Tuesday, report the Chicago Tribune and an ACLU press release. The law imposes sentences of up to 15 years in prison for those who record audio of police conversations without consent.

The ACLU had challenged the statute because it plans to make audiovisual recordings in a “police accountability program.” The group sought a declaratory judgment that the statute is unconstitutional as applied to the ACLU’s planned activities and an injunction barring the Cook County State’s Attorney from enforcing the statute against the ACLU. The injunction was denied, and the ACLU appealed.

The State’s Attorney had argued that recording what police say while performing their public duties is wholly unprotected by the First Amendment, an “extraordinary argument,” in the view of the majority.

“The Illinois eavesdropping statute restricts far more speech than necessary to protect legitimate privacy interests; as applied to the facts alleged here, it likely violates the First Amendment’s free speech and free-press guarantees,” Judge Diane Sykes wrote in the majority opinion (PDF).

Judge Richard Posner dissented. “Privacy is a social value,” he wrote. “And so, of course, is public safety. The constitutional right that the majority creates is likely to impair the ability of police both to extract information relevant to police duties and to communicate effectively with persons whom they speak with in the line of duty.”

Hat tip to How Appealing.

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