Federal Appeals Court Rejects Illinois' Eavesdropping Law As Likely Violating The First Amendment
from the good-for-them dept
We've been covering Illinois' ridiculous "anti-eavesdropping" law, which has been used a few times against individuals who record the police in public. For reasons that are beyond me, Illinois' attorney general has been not only quick to use the law (often in a very vindictive manner), but also has been pretty adamant in his defense that it was a perfectly reasonable law (despite other rulings that make it clear that recording police is perfectly reasonable). A few state courts have been rejecting the law as unconstitutional, but now a federal appeals court has weighed in and suggested that the law may violate the First Amendment. For now, it has simply sent the case back to the lower court to reconsider: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. Defending the broad sweep of this statute, the State’s Attorney relies on the government’s interest in protecting conversational privacy, but that interest is not implicated when police officers are performing their duties in public places and engaging in public communications audible to persons who witness the events. Even under the more lenient intermediate standard of scrutiny applicable to contentneutral burdens on speech, this application of the statute very likely flunks. 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 freespeech and free-press guarantees.It's good to see more and more courts rejecting these cases that clearly serve no purpose other than to scare off whistleblowers. Frankly, the state government should have recognized this long ago and not only dumped such a law, but then refused to bring such cases or stand behind such a ridiculous and unconstitutional law.
Unfortunately, this ruling was not unanimous among the three judge panel. Well respected appeals court judge Richard Posner -- who had already expressed concerns that if people were allowed to film the police, they might continue to do so -- disagreed with his colleagues and wrote a dissent on the ruling. Posner's argument seems to hinge on the idea that police might discuss private things in public places (not that any of the cases to date seem to involve that), and thus he fears that a wholesale rejection of the law goes too far. Even so, that seems like a bizarre ruling. Why should others get into legal trouble (and face jailtime) just because someone decided to discuss private info in public? Shouldn't the onus be on the person making those statements not to have revealed them in public?
Posner uses the dissent to launch an attack on supporters of a strong First Amendment, arguing that such an interpretation is inconsistent with how the Bill of Rights was written and would obliterate all sorts of laws that go up against the First Amendment. That seems like a rather extreme extrapolation.
Even today, with the right to free speech expanding in all directions, it remains a partial, a qualified, right. To make it complete would render unconstitutional defamation law, copyright law, trade secret law, and trademark law; tort liability for wiretapping, other electronic eavesdropping, and publicly depicting a person in a “false light”; laws criminalizing the publication of military secrets and the dissemination of child pornography; conspiracy law (thus including much of antitrust law); prohibitions of criminal solicitation, threats and fighting words, securities fraud, and false advertising of quack medical remedies; the regulation of marches, parades, and other demonstrations whatever their objective; limitations on free speech in prisons; laws limiting the televising of judicial proceedings; what little is left of permitted regulation of campaign expenditures; public school disciplining of inflammatory or disruptive student speech; the attorneyclient, spousal, and physician-patient privileges in cases in which an attorney or spouse or physician would like to speak but is forbidden by the privilege to do so; laws making medical records confidential; and prohibitions against the public disclosure of jurors’ names in cases in which jurors might be harassed. All these legal restrictions of free speech are permittedHe goes on to point out that recording the police in public may make them not be able to do their job:
An officer may freeze if he sees a journalist recording a conversation between the officer and a crime suspect, crime victim, or dissatisfied member of the public. He may be concerned when any stranger moves into earshot, or when he sees a recording device (even a cell phone, for modern cell phones are digital audio recorders) in the stranger’s hand. To distract police during tense encounters with citizens endangers public safety and undermines effective law enforcement.That seems like a pretty extreme hypothetical, and a nonsensical one once you think about it. If police are so distracted by someone filming them in public, they either shouldn't be in that job or need better training. It's hard to see how Posner's argument makes much sense, so I'm glad he was outvoted by his fellow judges, but his interpretation of the First Amendment is still worrisome.
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Filed Under: eavesdropping, first amendment, illinois, richard posner
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Re:
It only makes sense.
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what are these fine, upstanding cops worried about?
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Maybe we should look at getting rid of some of those.
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The list of restrictions the judge gave on absolute free speech is pretty reasonable. I don't agree that everything he named is worthwhile--and I certainly don't agree with the way he extrapolated it into the police-monitoring argument--but his premise is fundamentally sound. Would you really want to live in a world where it's considered a sacred, legally-protected right to yell "FIRE!" in a crowded theatre?
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Legally, this is so. But (and I know this depends on where you live) a substantial number of people consider any intentional killing of a human being for any reason to be murder in a nonlegal, colloquial sense. It might be justifiable murder, but murder nonetheless.
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Re: MadCow
Whether that accusation is correct, or whether it was actual self defense, is what I'm not taking a position on. I was simply using that as an example that should be familiar to the audience.
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Re: Re:
I wouldn't say dangerous, I would say impossible. If we consider all constitutional rights as absolute and without exception, that makes the constitution an unusable document right off the bat.
I don't think you could pick a single right out to make unconditional. You'd have to make them all unconditional. But many of them are at odds with each other, and exercising one can impinge on another.
It's the nature of rights in general: they're a balancing act, and compromises are required in order to advance liberty overall as much as possible.
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Absolutely Wrong
“Because an "absolute right" is a very dangerous thing.” Reply ”I wouldn't say dangerous, I would say impossible.”
Regardless if you believe in a Creator or not, why do you think an "absolute right" must be written? A Natural Right is an Absolute Right. A Legal Right is something that Govt can strip away if they see fit.
Barring any violations by a person,
Isn't the right to live an absolute right? Or can Govt just remove one’s life when they see fit as G. Bernard Shaw argued?
Isn't the right to liberty an absolute right? Or can Govt lock up people up on a Robespierre whim?
Balance that on your pin head.
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Re: Absolutely Wrong
Not on a whim, no, but with due process of law? Yes, absolutely. I wouldn't want to live somewhere where that wasn't true, and for all your rhetoric, I don't think you would either. (If you do, try moving to Somalia. They've had no government, "big" or otherwise, to enforce the laws for years now. Should be a paradise, right?)
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Re: Re: Absolutely Wrong
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Re: Re: Re: Absolutely Wrong
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Re: Absolutely Wrong
If you think I'm a big governista, then you simply don't understand me.
The government doesn't give any rights whatsoever, so I can think of a whole slug of rights that is not given by the government.
However, my point is that these rights naturally conflict with each other in a lot of ways, such that exercising one deprives someone else of another. The government has a proper role in managing this problem so that on the whole everyone's liberty is maximized.
Think about it -- if it's not the role of government, then whose role is it? because the conflicts have to be, and will be, resolved in one way or another.
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Re: Re:
We aren't talking about yelling 'Fire' in a crowded room. We aren't talking about child pornography. We are talking about filming something we see.
Do you have any clue how many times you are on camera and recorded, just driving down the freeway? Going out in public? All that is OK, but it is NOT OK if it is me filming a cop (or fireman or public official). Give me a break!
It's like Facebook syndrome. I want to yell to the world, but I don't want the world to use it against me.
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Re: Re: Re:
It's called intellectual integrity, and it's in far too short supply these days, pretty much everywhere. Left, right, center and everything in between seems to have abandoned the very concept of critical thinking, and it drives me up the wall.
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America's defense of Absolute Rights
Regardless if you believe in a Creator or not, why do you think an "absolute right" has to be written? A Natural Right is an Absolute Right vs a Legal Right that Govt can strip away if they see fit.
Isn't the right to live an absolute right?
Isn't the right to liberty an absolute right?
Your thinking process regarding rights is dangerous to others.
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Re: America's defense of Absolute Rights
In the sense they meant it, we all believe in a Creator of some sort, even it the Creator is "natural processes" or "your parents".
I've long been fond of that phrase in the preamble. If you look at how it came about, it's a nice little bit of finesse. The revolutionary thing about the Constitution was that it did not rely on any sort of deity as the source of authority. However, making that too explicit was politically problematic, so they came up with that phrase as a bit of a nod without tying anything to a god.
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Re: America's defense of Absolute Rights
No, on both counts. It is possible to sacrifice both of those rights if you commit the right crimes, get the right job, or a handful of other ways.
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Re: America's defense of Absolute Rights
.
Maybe the government should do something about that.
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Re: America's defense of Absolute Rights
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Re: Re:
Not only is it almost impossible to find a crowded theater these days due to lack of decent content and alternative delivery methods (aka PIRACY...)
But the reality is that nobody listens anymore, or they look at you like YOU are on fire (perhaps they assume the fire is in your pants?...), or they check their 'Theater on fire?' app and say, "Nope, the theater is not on fire... see".
It's almost impossible to get a crowd of people to trample each other just by screaming FIRE these days...
Why can't we go back to the old days when you could cause mass panic and potential casualties just by yelling in a crowded theater?
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Re: Re: Re:
When I go see movies, which I do fairly frequently, it's usually either packed (over 75% of capacity) or almost empty. What I don't see very often at all is a *moderately* full theater. :P
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Re: Re:
> it's considered a sacred, legally-protected right to
> yell "FIRE!" in a crowded theatre?
If there really is a fire, you bet.
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Re: Re: Re:
Obviously the rules are different in case of a real fire, but that's not the situation being discussed when this phrase is invoked.
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> real fire, but that's not the situation being discussed
> when this phrase is invoked.
No, you're just invoking the wrong phrase. Go back and read the case from which it originates. The prohibition was on falsely shouting fire in a crowded theater, not just shouting it in general.
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Ironically, the prosecutors who were cross examining him missed this completely. It was the mainstream media (I think it was CNN) that caught it.
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I guess that pretty much explains it, heh.
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normally I thought posner was regarded as a genius
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Re: normally I thought posner was regarded as a genius
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hey mom, watch this.......
the law further talks about expectation of privacy. that alone should shoot down the states entire argument - since when should an officer - who purposely dresses in a distinctive uniform (and often has a specially marked vehicle) in order to be recognized in public - expect privacy when …in public? They are a special kind of public servant (ooo there’s the word public again) and should expect no privacy when on duty. Speeding in your police car? In public. Soliciting a bribe? In public. Eating a donut? Painfully, in public. Funny that the penalty for recording an officer soliciting the bribe is greater than offering one. Besides, they need to learn to be recorded - when their overlords finish the world wide panopticon most of the rank and file will be IN it, not monitoring others.
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Wouldn't that mean that CCTV makes it impossible for police to do their jobs?
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where does he live ?
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Silly judge
Hasn't he ever heard of the widely deployed "Cone of Silence"? http://en.wikipedia.org/wiki/Cone_of_Silence
Why would the office freeze or be concerned if he has nothing to hide?
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Re: Silly judge
I prefer an umbrella over a cone. ;)
I could make the same argument as the judge about drivers. Shouldn't police not pull people over because it makes them nervous and might cause a wreck? Same with marked police cars. They cause people to drive well below the speed limit in the left lane and thus increase the risk of pileups. Yeah, it's a stupid and braindead argument and I agree with you about it not making sense.
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Then he or she is a weakling and a coward -- and should not only be fired on the spot, but blacklisted from public service for life. They're not fit to be a public servant.
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Judge Posner
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Courts Represent the State...
Until we allow competition in a free market of courts, arbitration systems, and dispute resolution organizations, we will not even come close to having real justice.
For some examples of possible voluntary & consensual solutions, check out these two free to download books:
"Chaos Theory" by Robert P. Murphy
"Practical Anarchy" by Stefan Molyneux
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Who watches the watchers?
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Otherwise we should file charges against the producers of the tv show Cops for interfering with officers while they're on duty.
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In case you'd like to know, the IL Attorney General is a She...
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Re: In case you'd like to know, the IL Attorney General is a She...
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Re: Re: In case you'd like to know, the IL Attorney General is a She...
For reasons that are beyond me, Illinois' attorney general has been not only quick to use the law (often in a very vindictive manner), but also has been pretty adamant in his defense that it was a perfectly reasonable law (despite other rulings that make it clear that recording police is perfectly reasonable).
Helpful Proofreader(?)
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Re: Re: Re: In case you'd like to know, the IL Attorney General is a She...
That's how I read it anyway, since he's also the one using the law in a very vindictive manner.
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"Rat Control"
There is a certain type of policeman who thinks it is too time-consuming to abide by the rules when dealing with unimportant people, especially the extreme variety of unimportant people known as homeless people, or street people. The policeman deliberately breaks a few bones with his nightstick, rather than going to the trouble of assembling evidence which will stand up in court. Occasionally, the policeman gets out of control, and kills someone over a trivial offense, vide Kelly Thomas. Sufficient video (and audio) inevitably exposes the policeman's lies about self-defense, and turns the case into Willful and Premeditated Murder. In the extreme cases, in Brazil and Columbia, during the 1980's, policemen went around shooting street children. With all of South America suddenly moving to the city in an uncontrolled way, there were large numbers of abandoned children living on the streets of cities such as Rio De Janeiro and Bogota. The proper welfare institutions were simply not organized on a scale to deal with this influx, and the street children necessarily supported themselves by petty theft, begging, prostitution, etc. In certain countries, the police expediently dealt with the problem as one of "rat control."
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The real problem
It's probably the same thing for cops, even the honest ones.
If I saw you walking toward me with a camera or other recording device, it would make me think that you had an agenda, and recordings can be altered to show anything.
The solution? More cameras. Put a shoulder mounted camera on every cop, and don't allow them to be shut off. Record every second of every day that an officer is in uniform.
Stream the video live to recording units in each squad car, the police station, and some centralized state or federally controlled location.
Then any good cop will be able to know that if he/she acts within the law, then all will be well, and any doctored record that someone else makes will be thrown out.
And for the bad cops, if a camera gets shut off or otherwise disabled, then there is a suspension. It may get some of the good cops, but not as many.
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Re: The real problem
but yea, you're right that that's the excuse they'll give. however, is that a valid excuse? NO! it's a bullshit excuse. and there is NO valid excuse for not allowing recording police.
cops are trusted and expected to be the best and brightest. they should have integrity and be honest. fuck me, we give them power to take your life if they feel it's necessary.
these fuckers that are against putting the police in check need to have their heads examined (or removed).
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Re: The real problem
The difference is that the police are public 'servants', and therefore should have no reasonable expectation of privacy on the job.
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Re: Re: The real problem
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Anyone who lives in the public eye (celebrity, politician, police officer, etc....) should always go about their job, and even their off-duty public activities, as if a camera crew was following them around. If they are uncomfortable with that or cannot live up to the standard it requires, they may want to choose a different profession.
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Being good enough at something that people want to watch the tv show that you are in or host or the movie that you star in should never mean that anyone should think they have a right to invade your privacy when you are off duty.
Police, when off duty also, should have an expectation of privacy, but on duty and in public not so much.
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recording arrests should be mandatory
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Re: recording arrests should be mandatory
Of course, when the police are in the wrong, these recordings often end up mysteriously lost.
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All I can think of is Watergate...
Thanks, Posner. I never understood before just how tense it can make our public officials, when there's a chance that somebody could actually document their wrong-doing. Clearly, allowing them to feel comfortable doing their jobs is far more important than ensuring that they perform their jobs effectively, legally, and carefully.
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Posner rebuttal
Aka the Streisand Effect law. These days using it seems to be worse than useless. The best way to counter defamation seems to be with more speech. Maybe it always was.
Color me radical, but I suspect we'd actually get on just fine without this.
And this.
And possibly this. See false advertising, below.
The act of wiretapping is not speech, though the act of disclosing the results is. Wiretapping and other eavesdropping should still be regulated.
See defamation law, above.
This may be necessary, but I'd say it should be starkly limited:
1. Like present trade secrets, once there's widespread knowledge proved among rival nation-states the secret status should be automatically lost.
2. Secrets relating to battle maneuvers or other things like that should only be enforced in wartime; and should have a short time limit on the secrecy. Once the secret battle plan has been used (or rendered moot) in battle, after all, the reason for keeping it secret no longer applies.
3. Secrets relating to capabilities and weapons systems should lose secrecy once these are widely known, per 1 above, or obsolete, unless they would if revealed enable small-scale actors to construct WMDs.
4. Likely nothing else should be eligible for military secrecy save a) battle plans and similar matter (and only during wartime; e.g. stuff analogous to the D-Day plans and landing sites) and b) the stuff in item 3 above.
More controversial, but this should probably also not be criminal. The dissemination, in and of itself, harms no-one, and it's increasingly possible to become guilty in that area inadvertently. Furthermore, criminalizing it encourages the concealment and destruction of evidence of much more serious crimes, even by people who come across such evidence without themselves having been involved in those crimes and who would not otherwise have a motive to do so.
As I understand it, conspiracy law doesn't prohibit speech per se. Rather it prohibits certain combinations of speech and action, since an action in furtherance of the conspiracy is required for guilt. So, much stronger free speech guarantees are not incompatible with conspiracy law.
If this means soliciting criminal acts, e.g. paying someone to kill someone, that should be coverable under other laws, e.g. attempted murder.
I'm not sure these should be prohibited. "Threats" are sometimes in jest. Fiction could be taken out of context. On the other hand, credible threats should remain grounds for closer scrutiny and possible intervention. For instance, the one who uttered the threat may be surveilled and if they try something jailed for assault or whatever. Or the one threatened can use it as grounds to obtain a restraining order, violation of which can again lead to the threatener being jailed.
Like conspiracy law, this one requires more than just speech. It requires a financial transaction as well. For example, touting a stock after buying some at a low price, then selling when the price goes up. Touting a stock you have no financial interest in would be pure speech.
False advertising in general seems to again be a problem specifically in combination with a transaction: the sale to a consumer confused or misled as to the origin, nature, efficacy, or whatever of the product. I'd suggest that a sale under such circumstances constitutes fraud, and that fraud law can be used in lieu of distinct false advertising law and also in lieu of trademark law. Passing off Bob's Cola as Coca-Cola to a paying customer would simply constitute fraud.
Why should such things be regulated? If the activity is peaceful and nonobstructive there's no legitimate need, if it's violent there are existing laws against assault, and if it's obstructing traffic or creating some other nuisance there are generally laws that cover that, such as city noise bylaws.
Another one of questionable necessity. If you're worried about prisoners communicating with confederates on the outside to operate criminal enterprises, it's privacy of speech in prisons that is the problem, not freedom of speech in prisons. Disallow encryption products and monitor all communications, except for privileged lawyer-client ones.
Questionable necessity.
Questionable effectiveness. We *do* need to get the influence of money out of politics but I don't think restricting campaign expenditures works very well. There are too many other ways for lobbyists to ply politicians with goodies, including simply "not doing it during a campaign". Perhaps we could require instead that politicians take a vow of poverty in exchange for lifetime welfare, or create a fund that provides equal funding to anyone running for office to what they can prove their competitors have received, or something like that to level the playing field. Or maybe it will solve itself. The issue of large corporate entities being able to skew media presentation of campaigners and issues by, in large part, owning the media may go away in the Internet age as the old broadcast media become increasingly irrelevant -- if, that is, we preserve strong free speech on the internet and avoid too much concentration of market power in too few ISPs.
Absolutely disagree that there should be such "disciplining".
I'm not even sold on the merits of these. In the attorney and physician cases, blabbing about confidential stuff could be regarded as an ethics breach by the professional bar, rather than being policed by the government; that would enable the privilege to exist without a government limitation on free speech.
See above, and see eavesdropping further above for when it's a leak rather than voluntary disclosure by a custodian of the records.
Similar to "uttering threats", perhaps the solution is not to limit speech but to enhance enforcement of the law you fear will be broken -- violent crime laws in the case of threats and harassment laws in this case.
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Re: Posner rebuttal
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That seems like a pretty extreme hypothetical, and a nonsensical one once you think about it. If police are so distracted by someone filming them in public, they either shouldn't be in that job or need better training. It's hard to see how Posner's argument makes much sense, so I'm glad he was outvoted by his fellow judges, but his interpretation of the First Amendment is still worrisome.
guess you never did any law enforcement, or seem to care about officers lives, officer responding to a potential violent scene, domestic abuse, reported gunfire etc.., arrives at night time and someone comes walking or hell, some retard comes running up and pulls something dark from his pocket and begins to point it at the officer, and the officer shoots the person, now you idiots will start screaming excessive force, demand he go to jail, he was "only" pulling out his cell phone to film the officer.....
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Melongo's Eavesdropping Case Dismissed: Another Blow To Illinois Eavesdropping Law
[1] http://www.illinoiscorruption.net/documents/MotionRequestAmendedOrder.pdf
[2] http://tinyurl.com/cqq6ahg
Melongo's motion : http://tinyurl.com/6nqv2se
State's response: http://tinyurl.com/73fwecf
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RCFP Article on Melongo's Case
http://tinyurl.com/cx45d4b
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Illinois Eavesdropping Still Alive
Video: http://www.illinoiscorruption.net/common/video-pressrelease.html
Press Release: http://www.illinoiscorruption.net/common/pressrelease.html
Please support this cause. The Illinois Eavesdropping law at its very core creates a two-class legal system wherein the conversations of the powerful and well-connected are protected to the detriment of the less powerful. The upcoming oral argument presents a unique opportunity for the common citizen to re-establish that legal balance that will unequivocally establish a right to record public officials in their public duties.
Therefore, please contribute to this all-important hearing by either attending it, writing about it, spreading the word or just forwarding the below video and press release to anybody who might be of any help.
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