ACLU v Alvarez – Will the Supreme Court Hear the Case?
July 11th, 2012 by Mickey Osterreicher and tagged ACLU v Alvarez, Certiorari, first amendment, free speech, Illinois Eavesdropping Act, national press photographers association, NPPA, US COurt of Appeals for the 7th Circuit, US Supreme Court
As you may recall, last week I updated the case of ACLU v Alvarez regarding the constitutionality of the Illinois Eavesdropping Act (the Act) which makes it a crime to audio record police officers without their permission while they are performing their official duties in a public place.
Well now a case that appeared to be over – isn’t. After a motion hearing, held on July 3, 2012, newly reassigned District Judge Sharon Johnson Coleman granted the ACLU motion for the preliminary injunction and entry of amended complaint in compliance with the Seventh Circuit’s May 8, 2012 opinion. This has the effect of enjoining the State’s Attorney (or anyone else in Illinois) from prosecuting the ACLU or its employees under the Act “for openly audio recording police officers, and civilians talking to such officers, without the consent of the officers and civilians when (a) the officers are performing their public duties, (b) the officers are in public places, (c) the officers are speaking at a volume audible to the unassisted ear of the person making the recording, and (d) the manner of recording is otherwise lawful.” While the language of the preliminary injunction specifically protects only the ACLU, one would hope that the state would also refrain from prosecuting anyone else under the Act, but given Ms. Alvarez’ dogged pursuit of this matter there is no guarantee.
The judge also heard arguments regarding State Attorney Alvarez’ motion to stay the proceedings while she seeks appeal from the United States Supreme Court. motion to stay “that that there is a reasonable probability that four [Supreme Court] justices will consider the issue sufficiently meritorious to grant certiorari, Judge Coleman granted the stay pending the filing the Writ of Certiorari.
In explaining her decision the Court took notice of the Seventh Circuit’s opinion finding the Act “an outlier in the country because it has no expectation of privacy provision and instead prohibits all non-consensual recordings.” But she also took note that “the Court has not considered the precise issues here – whether the police have any legitimate privacy interest in their public statements and activities while on duty, which is precisely why the Court may choose to hear the case.” Judge Coleman further rationalized that “while it may be likely that the Supreme Court will affirm the Seventh Circuit’s decision, it would likely do so with greater finality and expediency than if this matter proceeds in this Court and through a second appeal to the Seventh Circuit.” She also struck a proper balance by protecting both parties rights, finding that during the stay “Alvarez will not suffer any harm by not prosecuting anyone under this statute” while “the ACLU has the benefit of a preliminary injunction protecting their activities and precluding prosecution under the Act.”
She has scheduled a status hearing for 10/29/2012 at 9:00 a.m. And so the saga continues.
Posted in ACLU v Alvarez, Chicago, Chicago Police, First Amendment, First Amendment rights, Illinois, Illinois ACLU, Illinois Eavesdropping Law, National Press Photographers Association, News Photography, Newsgathering, NPPA, Photographers' Rights, Reasonable Expectation of Privacy, US COurt of Appeals for the 7th Circuit | 5 Comments »
July 12th, 2012 at 12:42 am
I have no idea how you can make it out of law school without a better understanding and respect for the First Amendment. After taking a smack from the Seventh District, she wants to proceed with her case to the Supreme Court? I guess that’s a double whammy. The fine people of Illinois will catch an earful regarding such a backward law. Worse, I suspect they’ll be forking out a few $ million as Alvarez goes to Washington. It’s great being American. I can stand in a tree from the town square and tell people what a complete doucher they have for a prosecutor. What an idiot. That’s free speech and it’s what makes America, America. Sorry Alvarez, but our cops don’t work in secret. Bad policy. Just ask Egypt, Libya, et al.
Ralph Braseth
School of Communication
Loyola University Chicago
July 12th, 2012 at 6:03 am
I have been enjoying you articles and monthly issues ever since I joined.
Reading all the wonderful efforts you are doing to keep our rights.
My only concern in the past was “what equipment to bring for a specific shoot”
That is not the case any longer, with all the new and old laws comming out of the woodworks around the world, I became self-conscious carrying a camera and paranoid about taking pictures, whether it is taking a shot of a flower in a field that has no fence or a shot of a street thinking that all the property owners might go after me, or any situation, where in the past I did not have to think about breaking any laws, I have been taking pictures for over sixty years in many countries and never ever had an incident where I was confronted by any official, now I have to look over my shoulders whether someone will think that I am a terrorist, a spy or whatever.
Anyway, I just had to let you know how I felt no matter how trivial my thoughts where.
I will keep on shooting.
Ron
July 12th, 2012 at 10:29 am
The State of Illinois is being poorly served by a prosecutor who obviously has nothing better to do than to bother the Supreme Court with a case that will obviously result in a vast majority smacking them down. And they will spend now much to fight it? They should face appropriate sanctions after they lose there too. But in the end, it will be better for all of us as other similar laws around the country will get a resounding message that they are acting unconstitutional on so many levels.
July 18th, 2012 at 8:34 pm
As a member of the Illinois Bar since 1977, I find this law revolting. The “legal minds” behind it obviously slept through Constitutional Law. Maybe they should re-sit for the bar exam.
I work in a country which is virtually at war with organized crime and drug cartels. Yet anytime I see a cop or a solider on the street doing his/her duty, I have complete freedom under the Mexican Constitution to observe and to take photos. I do it all the time, sometimes approaching within a few feet. Mexico, with all of its enormous problems, cares more for freedom of expression and freedom of the press than do some in the great State of Illinois.
July 20th, 2012 at 8:48 am
ok, I’ll go with this. If SCOTUS makes some determination that’s good because leos don’t respect the appellate circuit court decisions. I’d wager 7-2 in favor of the ACLU, probably Scalia, Thomas dissenting.