Federal Appellate Court: Illinois Wiretapping Law "Likely Violates" First Amendment

OFF THE WIRE

Illinois Barred From Enforcing Police Eavesdropping Law

http://www.wired.com/threatlevel/2012/05/illinois-police-eavesdroppin

Judge Richard Posner doesn't believe recording cops in public should be protected by the First Amendment..

The draconian Illinois eavesdropping law that forbids citizens from recording cops in public without their consent “likely violates” the First Amendment, a federal appeals court ruled today.

But that doesn’t mean the law is abolished.

It just means that Illinois cops will not be allowed to make these absurd felony arrests. For now.
“This is not a final judgment,” said Mario Cerame, the law student who runs the Right to Record blog during a phone conversation earlier today.
“The trial court has not ruled.”
Now the case gets bounced back to Judge Suzanne Conlon, who had previously ruled that recording cops in public was not a First Amendment right, putting her at odds with the laws in the rest of the 49 states, which propelled the appeal in the first place.
But even the panel of three appellate federal judges couldn’t come to a unanimous decision with Judge Richard Posner dissenting from the other two, stating that he fails to see how recording cops in public should be protected by the First Amendment.
Meanwhile, the state has the option to appeal the decision, which Cerame believes might happen.
Cerame, who is one of the most knowledgeable sources on this subject, is in the midst of final exams and will write a detailed synopsis of what this all means later this week.
This is how he explained it today in a follow-up email:

If the state does not appeal, Conlon will pick up where the case left off.
If the state appeals, they have two options: The US Supreme Court, or en banc review, for all the judges in the Seventh Circuit.
Neither the U.S. Supreme Court nor the the Seventh Circuit en banc has to take the case. Usually, chances are high that they don't. But the issue is hot, so one or both may.
I predict the state will attempt to get en banc review first. If the court there decides to hear it, it's going to be like the appeal in this case all over again, except instead of three judges there will be more than a dozen.
If the Seventh Circuit doesn't want to hear it en banc, the state can still seek review from the US Supreme Court. And, if some judges in the Seventh Circuit wanted to hear the case, but were outvoted, they will have a chance to write something saying why the US Supreme Court should take the case. (It's called a "Dissent from Denial of Rehearing En Banc.")
I predict en banc review will be denied, and Posner and some other judges will write a dissent. Those dissents can influence the US Supreme Court in whether it takes a case or not.

Here is excerpt from the decision:

The act of making an audio or audiovisual recording is necessarily included within the First Amendment’s guarantee of speech and press rights as a corollary of the right to disseminate the resulting recording. The right to publish or broadcast an audio or audiovisual recording would be insecure, or largely ineffective, if the antecedent act of making the recording is wholly unprotected, as the State’s Attorney insists. By way of a simple analogy, banning photography or note-taking at a public event would raise serious First Amendment concerns; a law of that sort would obviously affect the right to publish the resulting photograph or disseminate a report derived from the notes. The same is true of a ban on audio and audiovisual recording.

 Posner, whose legal mindset appears as outdated as the eavesdropping law, believes cops have an expectation of privacy in public.

Privacy is a social value. And so, of course, is public safety. The constitutional right that the majority creates is likely to impair the ability of police both to extract information relevant to police duties and to communicate effectively with persons whom they speak with in the line of duty. 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.

Chicago police had already announced they wouldn’t be using the eavesdropping law to arrest citizens who record them during the NATO protest later this month.
But that just means they will probably resort to a number of other charges used by police throughout the country during protests to crackdown on photographers, including disorderly conduct, obstructing, interference and resisting arrest.
But those are only misdemeanors, not felonies.
For more legal analysis and articles on the decision, check out the The Volokh Conspiracy and the National Press Photographers Association blog.

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