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ACLU v Alvarez – Will the Supreme Court Hear the Case?

July 11th, 2012 by Mickey Osterreicher and tagged , , , , , , , ,

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 | No Comments »

ACLU v Alvarez: The Case Continues

July 5th, 2012 by Mickey Osterreicher and tagged , , , , , , , ,

For those of you following the case of ACLU v Alvarez regarding the constitutionality of the Illinois Eavesdropping act the case is far from over despite the opinion by the United States Court of Appeals for the 7th Circuit on May 8, 2012.

Three days later, Appellee Anita Alvarez filed a motion to extend time to file a petition for rehearing and the ACLU filed a response in opposition. Interestingly enough, both parties used the approaching NATO Summit as the justification for their motion: the State’s Attorney, because her staff was busy preparing for it; and the ACLU, because it wished the preliminary injunction immediately put into effect to prevent the enforcement of the Act during the Summit. On May 15, 2012 the court granted the motion to extend the time to file and on May 29, 2012 in accordance with that order the Appellee filed a petition for an en banc rehearing.

As part of its petition, the State’s Attorney claimed that “[t]he panel majority decision . . . creates [an] unlimited First Amendment right of the public to engage in audio-recording and surveillance of public officials encountering private civilians regardless of whether the persons speaking consent to such recording.” Arguing that the Act “requires the recorder to obtain consent from the putative speakers as a prerequisite to recording,” the State’s Attorney maintains that the Act ultimately “regulates conduct (i.e., failing to obtain consent) not speech.”

Following denial of that motion by the 7th Circuit on June 14, 2012 and the transfer of the case to District Judge Sharon Johnson Coleman, the ACLU filed for entry of its amended complaint and for the implementation of the preliminary injunction on June 25, 2012. The next day it moved for summary judgment. Not surprisingly, on June 28, 2012 the State’s Attorney once again moved “to stay all proceedings in the District Court so that State’s Attorney Alvarez may prepare and file a petition for writ of certiorari in the instant case to the United States Supreme Court. Alternatively, State’s Attorney Alvarez moves to stay briefing of Plaintiff’s motion for summary judgment and allow discovery.”

The ACLU entered its opposition to that motion on July 2, 2012, asserting that “Alvarez does not meet any of the requirements for a stay pending the filing and disposition of a writ of certiorari;” and citing Hollingsworth v. Perry, 130 S. Ct. 705 (2010) for the proposition that “To obtain a stay pending the filing and disposition of a petition for a writ of certiorari, an applicant must show (1) a reasonable probability that four Justices will consider the issue sufficiently meritorious to grant certiorari; (2) a fair prospect that a majority of the Court will vote to reverse the judgment below; and (3) a likelihood that irreparable harm will result from the denial of a stay.”

Among other things, the ACLU argued that the State’s Attorney cannot “meet her burden of proving . . . a reasonable probability that four Justices will vote to grant certiorari;” “that she cannot meet her separate burden of proving ‘a likelihood that irreparable harm will result from the denial of a stay;’” and that she did not articulate with specificity (or in any way whatsoever) facts necessary to overcome  a motion for summary judgment.

Stay tuned for further developments in this ongoing case.

Posted in ACLU v Alvarez, Certiorari, Chicago, Chicago Police, Federal Court, First Amendment, First Amendment rights, Illinois, Illinois ACLU, Illinois Eavesdropping Law, National Press Photographers Association, News Photography, Newsgathering, NPPA, photographers, Photographers' Rights, photojournalism, Police, Reasonable Expectation of Privacy, Recording, Recording Police, US COurt of Appeals for the 7th Circuit, US Supreme Court | No Comments »

7th Circuit Court of Appeals Upholds Right to Record in Public

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 Opinionthe 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).

 

Posted in Access, ACLU v Alvarez, First Amendment, First Amendment rights, Illinois ACLU, Photographers' Rights, Reasonable Expectation of Privacy, Recording, Recording Police | No Comments »