IL Court: Eavesdropping Law Violates First Amendment When Used Against People Recording The Police

from the hold-on,-is-this-thing-on? dept

Mon, Sep 19th 2011 1:59pm — Timothy Geigner

We were just discussing the ruling of a 7th circuit federal judge, Richard Posner, about a controversial Illinois eavesdropping case, in which His Honor seemed to fear that allowing people to record interactions with police would...lead to people recording interactions with police. Or something.

"If you permit the audio recordings, they'll be a lot more eavesdropping.…There's going to be a lot of this snooping around by reporters and bloggers," U.S. 7th Circuit Judge Richard Posner said. "Yes, it's a bad thing. There is such a thing as privacy."

To me, that sounds an awful lot like saying you can't increase the speed limit on a street to 65 MPH, because then more people will go 65 MPH. That's kind of the point.

In any case, reader Mark informs us that an Illinois State Court has gone the other way, in the Michael Allison case we wrote about a couple weeks ago, ruling that the law cannot apply to interactions with police and court officials as it violates the 1st Amendment. In the Posner article, plenty of commentors (myself included), drew a line between private interactions between citizens and interactions with public officials, arguing that while administering to a public duty, officials ought not be able to hide behind the veil of privacy. Circuit Court Judge David Frankland outlined a similar, if more eloquent, assertion in his opinion:

“'A statute intended to prevent unwarranted intrusions into a citizen's privacy cannot be used as a shield for public officials who cannot assert a comparable right of privacy in their public duties,' the judge wrote in his decision dismissing the five counts of eavesdropping charges against defendant Michael Allison."

I admit I struggle to see how anyone can disagree. When you're carrying out your public duty, your employer (the public) has a right to document what kind of job you're doing. While, as was Judge Frankland's opinion, we can make some exceptions for the sake of avoiding distractions (Allison actually tried to record in-court proceedings, a no-no), trying to make any of this a felony is downright silly.

The public is the public servant's employer, afterall. And that includes the Justice System as well. It's nice to hear from a judge who hasn't seemed to have forgotten that.

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Filed Under: eavesdropping, first amendment, free speech, illinois, michael allison, police, wiretapping

18 Comments

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Mike42 (profile), 19 Sep 2011 @ 2:16pm

Glad to hear my state has upheld the rights my grandfather and great-grandfather fought for. Now if we could just sack that assistant DA...
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Anonymous Coward, 19 Sep 2011 @ 2:16pm

Holly cow!
Those are so rare nowadays I had to express surprise.
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Anonymous Coward, 19 Sep 2011 @ 2:19pm

Richard Posner is a federal circuit judge, not a federal district judge. And reading the comments from the oral argument in context, I don't think he was talking about recording the police (he's generally strong on First Amendment). Comments made during oral arguments at the federal courts of appeal, in any case, aren't of any legal significance. Wait for the decision.
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Jim_G, 19 Sep 2011 @ 2:56pm

I wonder if the police will argue that the recordings are legal but still can't be distributed for copyright reasons.
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Bill Silverstein (profile), 19 Sep 2011 @ 2:58pm

The ruling and oral argument
Good point, wait until the ruling.

I listened to the oral arguments in e360insight v. Spamhaus and his questions/comments did comport with the ruling. I had one friend who practices in the 1st circuit and does quite a bit of appeal work find that sometimes the winning party gets the harder questioning. So, you can't tell.

In reading the comments about Posner, I was thinking that Posner might have been a bit of tongue in cheek about the argument of if they are allowed to do it, then they might do it.
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Thomas (profile), 19 Sep 2011 @ 3:27pm

The famous line..
"if you haven't done anything wrong, you shouldn't be concerned", which the cops use against people, but they hate it when it's the other way around.

Now what about the poor guys who have been arrested and jailed? If the courts finally rule it was an improper application of the law, happens to the victims? Can they sue for wrongful arrest? Not likely.

One way or another the police will manage to stop people from recording them in the name of something. The cops fear another Rodney King incident, but they are more concerned about keeping people from finding out about it than about not beating people.
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Anonymous Coward, 19 Sep 2011 @ 3:34pm

Why it is important for people to record public servants?
Here is the answer:
http://boingboing.net/2011/09/19/what-will-happen-to-the-police-officers-in-these-two-cases .html

Because if you are not allowed to, then it is your word that means nothing in courts that have a strong bias towards the government institutions.
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Anonymous Coward, 19 Sep 2011 @ 4:16pm

"We were just discussing the ruling of a 7th circuit federal judge..."

Again, there's been no "ruling," just oral arguments. A reporter's notes of what a judge said off-the-cuff signals next to nothing, or less.
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Anonymous Coward, 19 Sep 2011 @ 4:39pm

Re:
One a decision by a state court, and the other questions and comments made during the conduct of oral argument before a federal appellate court. Of course, this is a distinction of no moment. Even questions and comments during oral argument are more than enough for some to try and create a moral panic.
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abc gum, 19 Sep 2011 @ 5:01pm

Relevant

http://www.tulsaworld.com/site/support/javascript.aspx

Sorry about the javascript requirement, paywall morons.
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Anonymous Coward, 19 Sep 2011 @ 5:15pm

Re:
link broken
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ECA (profile), 19 Sep 2011 @ 7:58pm

Public/private
My first point is to look up the meaning in a dictionary..

My second point is this.
A police officer is considered a Professional Observer.
You have no recourse in a 1 on 1 challenge. You loose.

What can you do? record the incident, "for clarification"
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Rich (profile), 20 Sep 2011 @ 6:56am

not all cops...
Most cops handle these types of things poorly, but NOT ALL! I was very surprised to see a video on youtube where the cops were very cool in the face of recording and rude behaviour.

Go to youtube and search for "cops interrupting video shoot" by DurtyFilmz
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Anonymous Coward, 20 Sep 2011 @ 7:08am

Anyone who has ever lived in a large American city can tell you that the Police are not your friend. They lie to you, they set up stings to justify their budgets, they harass you for standing on the street. I grew up near downtown Chicago and was arrested the first time at 10 years old for begging, yea a sting with a cop acting drunk and giving away dollar bills. The Undercover Police Officer grabbed me while giving me a dollar bill and then arrested me for begging. What a bust!! A 10 year old kid that thinks a drunk guy is giving away money.
Granny warned me at a young age. She said: "Son you have to remember, you can't trust Lawyers, Police or Politicians because they all lie for a living. Stay as far away from them as you can and never believe a word any of them say."
Remember that and you will avoid a lot of aggravation.
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Thomas (profile), 22 Sep 2011 @ 10:54am

They have a saying...
"if you are doing nothing wrong, you have nothing to worry about", which cops use a lot. Unfortunately they don't believe it should apply to them.

They are afraid of another Rodney King incident, but their idea of how to avoid it is to ban taping the cops.

Cops are really afraid of video since witnesses can be suborned and discredited, but a video is hard to argue with in court.

And of course what if you video an incident where a crazy person charged a cop and the cop properly defends himself and shoots him - I bet the cops would be happy to have that to help their case.
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Anonymous Coward, 23 Sep 2011 @ 9:25am

Working in law enforcement, I say let them record as long as they aren't obstructing us in our duties. Just remember it is a double edged sword. If they can record us whenever they want then you as the public (Our "employers"), should not expect any privacy either. So, a fatal or homicide can be recorded. When we search your house or car can be recorded and all the things we find. Your arrest can be recorded. This will be fun. Let's just set the record straight and make it all transparent. Noone gets to hide from the camera and audio. Since I conduct myself accordingly, I am not bothered by this. The real question is, how will you feel about it when it's your turn in the box???
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Alfonso, 16 Feb 2012 @ 11:09am

Bias In Reporting Eavesdropping Cases
I'll really amazed at the bias shown by Chicago Tribune in reporting cases about Illinois Eavesdropping Law. In Cook County there were three Eavesdropping Cases: People v. Moore, People v. Drew and People v. Melongo. In the first case, the jury acquitted the defendant. In the last two cases, there are pending motions to dismiss. However, Tribune has completely ignored the Melongo's case and focused all its attention on the Drew's case. Melongo recorded three conversations with a manager, Pamela Taylor, at the Cook County Reporter Office for allegedly altering a court transcript. Mrs. Taylor is not a police officer but rather a public official working at the criminal located at 2600th California Ave. Melongo has spent 22 months in jail for this offense, is currently out on house arrest, yet the Tribune in all of its many articles, has completely ignored the Melongo's case. Why? Maybe there's a great bias in that agency against police to the extend that it has turned a blind eye on the integrity of reporting the news. If it wants to report news related to the Eavesdropping Law, then by all means, it should report ALL of it; I'm extremely shocked at what's happening here. A complete assault on police whereas there are also other people outside the police force being recorded while performing their duties.

Melongo's Motion to dismiss: http://www.scribd.com/doc/81096353/Amended-Motion-To-Dismiss-Illinois-Eavesdropping-Case

State response's to Melongo's motion: http://www.scribd.com/doc/81750317/State-Response-Amended-Motion

Melongo's arguments on her motion to dismiss will be heard on March 13th, 2012. The presiding judge is Goebel.

That's what mean being impartial. Tell the ENTIRE story. Not just a snippet of it.
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jeanette, 31 Jul 2012 @ 6:38pm

RCFP's Article On Melongo's Dismissing her Eavesdropping Case:

http://tinyurl.com/cx45d4b
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