7th Circuit Instructs District Court to Issue a Preliminary Injunction on Illinois Eavesdropping Law in ACLU Case

The 7th Circuit U.S. Court of Appeals in Chicago has issued an order asking the district court to issue a preliminary injunction enjoining the Cook County State's Attorney from applying the Illinois eavesdropping statute against the ACLU and its employees or agents for openly recording law enforcement officers who are performing their official duties in public places. The court held that Illinois' eavesdropping law "likely violates" the First Amendment. The opinion is available here. The Illinois State Bar Association is opposed to the law and supports SB 1808 - which would allow a citizen to audio and video record police officers performing public duties in public places. More information on SB 1808 is below.

The Facts on Illinois’ Eavesdropping Law: Support SB 1808 as amended by HA #1

Q:  What is this bill trying to address?

A:  Illinois eavesdropping law allows a citizen to video-record (film) a law enforcement officer doing public duty in a public place but makes it a Class 1 felony if the citizen audio-records the same public activity. Senate Bill 1808 strikes the right balance between the reasonable expectation of privacy and the First Amendment by allowing citizens to audio record law enforcement officers performing public duties in public places.

Q:  What do Illinois’ courts have to say about the current eavesdropping law?

A:  It has been struck down as unconstitutional by two Illinois circuit courts (Cook & Crawford).  Also, a federal district court in Massachusetts struck down a similar law and awarded damages to the citizen for being prosecuted.

Q:  Are there any provisions in this bill to protect law enforcement officers if recordings are intentionally altered and used as a basis for a complaint of misconduct by the officer?

A:  Yes.  If a person does do that, then the recording must be presented to the State’s Attorney for possible prosecution. This is identical to how complaints against law enforcement officers are handled under Illinois law that are based on false testimony.

Q:  What does this have to do with the First Amendment?

A:  Everything. The First Amendment is the right of the citizens that is often exercised by the media. This is one reason why the City of Chicago has wisely decided not to enforce the current eavesdropping law during this month’s NATO Summit in Chicago. 

Q: Will this thwart law enforcement officers from doing their jobs?

A:  No, the law enforcement officers already seal off crime scenes, and citizens who refuse to honor that may be arrested. The bill also creates an exception for private places where officers do have a reasonable expectation of privacy (their private offices). 

Q:  Does this bill compromise law enforcement officer safety?

A:  No. Citizens may already film officers now in public places doing public work; how does allowing them to audio-record change that dynamic? Chicago Police Superintendent McCarthy has stated that he “…endorses video and audio recording.”  (“McCarthy:  It’s good to record officers,” Pallasch & Emmanuel, Chicago Sun-Times, January 20, 2012.)

Q:  Who supports this bill?

A:  The public likes this bill. The State Journal-Register, The Southern, Chicago Sun-Times, and Chicago Tribune have all editorialized in support of this measure. Proponents are the Illinois State Bar Association, Illinois Press Association, American Civil Liberties Union, and the National Press Photographers Association.

Posted on May 8, 2012 by Chris Bonjean
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