May 8th, 2012 by Mickey Osterreicher
The United States Court of Appeals for the Seventh Circuit today granted a preliminary injunction, blocking enforcement of the Illinois Eavesdropping statute as it applies to audio recording of police performing “their duties in public places and engaging in public communications audible to persons who witness the events.”
According to 7th Circuit Opinion “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.
The NPPA along with other media groups had submitted an amicus brief in support of the ACLU position, which now aligns with the decision in the First Circuit in Glik v Cunniffe. The 3 judge panel in this case found that “the Illinois eavesdropping statute restricts a medium of expression commonly used for the preservation and communication of information and ideas, thus triggering First Amendment scrutiny. Illinois has criminalized the nonconsensual recording of most any oral communication, including recordings of public officials doing the public’s business in public and regardless of whether the recording is open or surreptitious.”
The court did not adopt the Illinois argument that the government’ had an “interest in protecting conversational privacy,” finding instead that “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.”
“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.”
Not surprisingly in his dissent , Circuit Judge Richard A. Posner continued the suppositions and parade-of-horribles that he first articulated during the oral argument in this case last October. Advocating for a reasonable expectation of privacy for police and others when speaking in public he conjectured about how “in many of these encounters the person conversing with the police officer may be very averse to the conversation’s being broadcast on the evening news or blogged throughout the world.” Once again erroneously seeking to trample on the First Amendment right to record in public in order to protect against the possibility of a perceived right of privacy tort arising should such conversations be published.
Fortunately Judges David F. Hamilton and Diane S. Sykes had the good sense to recognize that “the Illinois eavesdropping statute obliterates the distinction between private and nonprivate by criminalizing all nonconsensual audio recording regardless of whether the communication is private in any sense.” (emphasis in the original).