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 permitted

He 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.

Filed Under: eavesdropping, first amendment, illinois, richard posner

Yet Another Court Says Illinois 'Eavesdropping' Law That Criminalizes Recording Police Is Unconstitutional

from the free-speech dept

We've covered in great detail the ridiculous law in Illinois that makes it a crime to record police, even while they're on duty, without their knowledge. This seems crazy to us, and it appears the courts are agreeing. Last fall, we noted that a state court had ruled the law was unconstitutional, and now (as pointed out by reader John Katos) another local court has done the same.

Judge Stanley Sacks, who is assigned to the Criminal Courts Building, found the eavesdropping law unconstitutional because it potentially criminalizes “wholly innocent conduct.”

Last we'd heard, Illinois prosecutors were appealing the first ruling, and I imagine they won't be too happy about this ruling either. But, at some point, it seems they have to recognize the ridiculousness of making it a crime to record police on the job.

Filed Under: constitutionality, free speech, illinois, police, recording

Guy Arrested, Threatened With 15 Years For Recording Traffic Stop In Illinois

from the it-just-gets-worse-and-worse dept

With Illinois planning to appeal the Michael Allison case, in which the state wants to put Allison in jail for 75 years because he recorded an interaction with the police, it's worth pointing out that this is not the only such case in Illinois. A few people have sent over this ABC report about another guy, Louis Frobe, who was arrested and told he was facing 15 years in jail for daring to turn on his Flip cam during a traffic stop. You can see the video of the traffic stop in the news report below. Yes, note the irony: the whole thing was recorded (without Frobe's permission) by the police car camera, but the second the officer sees the Flip cam, he tells Frobe he's committed a felony and arrests him: The key part:

Frobe calls it the worst experience of his life. He was on his way to a late evening movie on an August night last year when he was stopped for speeding in far north suburban Lindenhurst. He didn't believe he was in a 35-mile-an-hour zone, and he figured if he was going to get ticket he wanted to be able to document his challenge with video evidence, so he got out his flip camera, which he was not very adept at using.

At one point he held it out the window trying to record where he was. When the officer, being recorded on his squad dash cam, walked back to Frobe's car, the officer saw Frobe's camera.

Officer: "That recording? Frobe : "Yes, Yes, I've been... Officer: "Was it recording all of our conversation? Frobe: "Yes. Officer: "Guess what? You were eavesdropping on our conversation. I did not give you permission to do so. Step out of the vehicle."

Louis Frobe was then cuffed and arrested for felony eavesdropping.

Yes, eavesdropping. On himself.

In this case, prosecutors eventually dropped the charges, but Frobe turned around and sued them for the arrest in the first place. The Illinois Attorney General -- who still insists there's no First Amendment right to record the police -- has said Frobe's case should be dismissed since he has no standing. Of course, this is a nearly identical fact pattern to the Glik case in Massachusetts, where the court not only allowed Glik to sue but found 1st and 4th Amendment problems with the arrest. These are different circuits, so the ruling in Massachusetts doesn't directly act as precedent for Illinois, but it certainly can be cited and discussed.

Filed Under: free speech, illinois, louis frobe, michael allison, police, recording

Illinois Prosecutors Planning To Appeal Ruling That Said Recording Police Is Protected By The First Amendment

from the of-course-they-are dept

Earlier this month, we wrote about the ridiculous criminal case against Michael Allison, who was facing 75 years in prison for the horrible crime of recording the police. The details of the case made it quite clear that the charges against him were vindictive, in response to attempts by Allison to challenge a questionable fine he'd received. Thankfully, an Illinois state court tossed out the lawsuit, noting that the law pretty clearly violated the First Amendment.

Of course, for whatever reason, Illinois state law enforcement has taken particular interest in the case, with the state Attorney General office coming in to help with the case, and the Illinois Assistant Attorney General flat out claiming that there's no First Amendment right to record police. So, it should probably come as little surprise that the state has indicated that it's planning to appeal the ruling (via Radley Balko). Perhaps this isn't a surprise -- but it does suggest a really broken system where the state is so adamant in trying to vindictively punish a guy for defending his own rights.

Filed Under: free speech, illinois, michael allison, police, recording

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

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

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.

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

Famed Appeals Court Judge Worries That Allowing People To Record Police Might Mean That People Actually Record The Police

from the wtf? dept

While I definitely don't agree with famed 7th Circuit appeals court judge Richard Posner on everything, he's generally recognized as a smart judge with a strong libertarian belief and a recognition and understanding of real economic issues. However, there are a few times when he seems to just reach a weird conclusion. Case in point: in a case involving Illinois' somewhat ridiculous "eavesdropping" law, which makes you a criminal just for recording the police with a mobile phone, Judge Posner has suggested that letting people film police is undesirable:

"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."...

Say what now? We're talking about recording public officials who are paid with taxpayer dollars doing a job in public, and Posner is worried about their privacy rights? Wouldn't it be a good thing for reporters and bloggers to be "snooping around" police if it turns up problems or corruption? And, really, since other courts have already declared similar rules unconstitutional, and it hasn't rendered those kinds of states into this crazy dystopia that judge Posner envisions, shouldn't that be evidence that these "concerns" are out of touch with reality?

Filed Under: free speech, illinois, police, privacy, recording, richard posner

Man Facing 75 Years In Jail For Recording The Police; Illinois Assistant AG Says No Right To Record Police

from the insanity dept

Following on the news of a court in Massachusetts stating, clearly, that arresting someone for recording the police is a 1st Amendment violation, you'd hope that we'd start hearing fewer such stories. And yet, as Nick Burns alerts us (followed by a few more of you), over in Illinois, a guy named Michael Allison appears to be facing 75 years in prison for recording the police. Similar to other cases, the police charged him with illegal eavesdropping under an Illinois state law -- in this case, five felony counts, each of which could get 15 years in prison. Even worse, the Illinois Assistant Attorney General is arguing that there is no such thing as a right to film the police. Shouldn't there be a rule that if you're totally ignorant of basic Constitutional rights, you don't get to be Attorney General of anything? The Allison case is particularly nasty. It seems clear that it's a vindictive response to the fact that Allison challenged a fine he got for working on unregistered cars on his mother's property. As happens all too often in these types of cases, the prosecutors have been offering Allison plea bargain deals, and I'd imagine they'll keep doing that as public pressure gets stronger. It's the only way to save face against a ridiculous prosecution. Allison is refusing to accept any plea deal.

Also, if you watch the video above, it really shows the kind of chilling effects these arrests have. In the middle of the video, the news reporter comes across some law enforcement officials and asks them some questions, but the station's lawyers refuse to let the reporter play the audio on air... because it might violate the very same law on which the reporter is reporting. Later on, they do show some law enforcement officials -- including the Assistant AG mentioned above -- but only because they believe there's an exception to the law for journalists "at public hearings."

The ruling in Massachusetts doesn't directly apply here, as these are different circuits, but that doesn't mean the court can't or won't pay attention, and I'm sure Allison's lawyers will highlight the Glik ruling in court. Hopefully, the Illinois court finds the logic compelling.

Filed Under: arrests, chilling effects, eavesdropping, filming, illinois, michael allison, police

Artist Facing 15 Years In Jail For The Crime Of Videotaping His Own Arrest

from the this-is-a-problem dept

Yesterday, we wrote about a woman who was facing 15 years in jail for using her cameraphone to videotape part of her effort to get Internal Affairs of the Chicago Police Department to investigate an officer, whom she claims sexually assaulted her. Apparently, this sort of situation is not unique in Illinois. Another story this week tells about an artist who set out to do a reasonable bit of civil disobedience: to protest a Chicago ordinance concerning where and when he could sell artwork on the street. He intended to get arrested for that misdemeanor by selling his art. As part of this, he had a First Amendment lawyer with him... and a video crew. Well, he did get arrested, but not for the misdemeanor of selling artwork in the wrong spot, but for the same felony of eavesdropping and is facing the same 15 years in prison as the woman we spoke about yesterday. Apparently, a big part of the problem is Illinois' Eavesdropping Act, which seems to create this ridiculous situation. Of course, the fact that prosecutors are actually moving forward with charges on such things is equally ridiculous. It's a good reminder of a reason to stay away from Chicago.

Filed Under: arrested, chicago, eavesdropping, illinois

Woman Arrested For Recording Attempt To Report Police Officer Who Sexually Assaulted Her

from the feeling-safer? dept

We've had a few stories about how police have been abusing wiretap laws to arrest people who video or audiotape the police, and here's a whopper of a case. Apparently a woman named Tiawanda Moore has been arrested and faces 15 years in prison in a case that goes to trial shortly. Her "crime"? Apparently, after being sexually assaulted by a Chicago police officer, she went to the Chicago Police Department's internal affairs group to report the officer. After being pressured not to file a report, she pulled out her mobile phone and started recording what was going on. The officers in the room saw this... and arrested her for eavesdropping. Oh yeah, while her trial starts shortly, the officer she reported is still "being investigated."

Filed Under: chicago, eavesdropping, illinois, police, recording, wiretapping

Illinois Says Sex Offenders Can't Use Social Networks

from the ok,-but... dept

Mark alerts us to the news that Illinois has approved a new law that bans registered sex offenders from social networking sites. Now, I have no sympathy for anyone who uses a social networking site to approach kids for such nefarious purposes, but this seems like a rather broad brush for a variety of reasons. First, considering how many sites have added "social networking" features lately, this could block out a rather large portion of the internet. Hell, just recently Google announced new social features for its iGoogle homepage. Second, the vast majority of registered sex offenders weren't convicted of trying to entice a kid via a social network. Completely blocking all of those people from social networks seems rather pointless. Finally, the whole idea that social networks are some sort of breeding ground for predators is a moral panic made up by the press. Studies have shown that the common story of a predator getting online, pretending to be a kid, and befriending "targets" and "grooming" them is mostly a myth. That's not to say it hasn't happened, but it's quite rare, and the best way to deal with it is simply to educate kids on how to deal with strangers. Most are smart enough to deal with the issue on their own. But, of course, that doesn't make for good headlines for politicians who want to make sure everyone knows they're "protecting the children."

Filed Under: bans, illinois, sex offenders, social networks