American Civil Liberties Union of Ill. v. Alvarez
679 F.3d 583 (2012)
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Rule of Law:
A statute that broadly criminalizes the nonconsensual audio recording of any oral communication, regardless of whether there is an expectation of privacy, is likely an unconstitutional violation of the First Amendment's free speech and press guarantees when applied to the open recording of on-duty police officers in public places.
Facts:
- The Illinois eavesdropping statute makes it a felony to audio record any conversation without the consent of all parties.
- The statute explicitly applies to any oral communication, regardless of whether the parties intended it to be private.
- The penalty is elevated to a more serious felony if one of the parties recorded is a law-enforcement officer performing official duties.
- The American Civil Liberties Union of Illinois (ACLU) planned a "police accountability program" to promote transparency.
- As part of this program, the ACLU intended to openly make audiovisual recordings of on-duty police officers in public places.
- These recordings would capture officers speaking at a volume audible to any bystander.
- The ACLU planned to publish these recordings online and through other media to inform the public.
- Fearing criminal prosecution under the eavesdropping statute, the ACLU refrained from implementing the recording component of its program.
Procedural Posture:
- The ACLU filed a preenforcement action against Anita Alvarez, the Cook County State's Attorney, in the U.S. District Court, seeking declaratory and injunctive relief.
- The ACLU moved for a preliminary injunction to bar enforcement of the Illinois eavesdropping statute.
- The district court dismissed the ACLU's initial complaint for lack of standing, holding that the ACLU had not alleged a credible threat of prosecution.
- The ACLU moved to amend its complaint to add individual plaintiffs and more detail about the threat of prosecution.
- The district court denied the motion to amend, ruling that while the standing defect was cured, the ACLU had failed to allege a cognizable First Amendment injury because there is no 'right to audio record.'
- The ACLU appealed the district court's denial of its motion to amend to the U.S. Court of Appeals for the Seventh Circuit.
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Issue:
Does the Illinois eavesdropping statute, which criminalizes the nonconsensual audio recording of any conversation regardless of privacy expectations, violate the First Amendment's free speech and press guarantees when applied to the open recording of on-duty police officers performing their duties in public?
Opinions:
Majority - Sykes, J.
Yes. The Illinois eavesdropping statute, as applied to the open audio recording of on-duty police officers in public, likely violates the First Amendment's free speech and press guarantees. The act of making an audio recording is a medium of expression included within the First Amendment's protections, as it is an integral corollary to the right to disseminate information. The statute burdens core First Amendment activities, namely the discussion of governmental affairs and the gathering of information about public officials. The state's asserted interest in protecting conversational privacy is not implicated here, as police officers performing their duties in public and speaking audibly to bystanders have no reasonable expectation of privacy. Because the statute bans all nonconsensual recording, including that which involves no privacy interest, it is not narrowly tailored and restricts far more speech than necessary to achieve its objective. Therefore, the statute likely fails even intermediate scrutiny as applied to these facts.
Dissenting - Posner, J.
No. The Illinois eavesdropping statute does not violate the First Amendment because it serves the state's legitimate interests in protecting privacy and ensuring public safety, which outweigh the asserted right to record. The majority's decision creates a novel constitutional right without sufficient basis and improperly invalidates a state law. The statute protects the privacy not only of police but also of civilians (e.g., crime victims, informants, suspects) who interact with them in public and who have a strong interest in not having their conversations broadcast. Allowing ubiquitous recording is likely to chill communications between the public and law enforcement, distract officers during tense encounters, and thus undermine public safety. There is a significant distinction between merely overhearing a conversation and creating a permanent, perfectly accurate recording, which constitutes a far greater intrusion on privacy. The legislature is better positioned than the judiciary to balance these competing interests.
Analysis:
This decision establishes a First Amendment right to openly record on-duty police officers in public, at least within the Seventh Circuit. It significantly strengthens the position of citizen journalists and police accountability advocates by classifying the act of recording itself as a protected expressive activity. The ruling puts states with broad, all-party consent eavesdropping laws on notice that such statutes are vulnerable to constitutional challenges when they criminalize the recording of public conversations where no reasonable expectation of privacy exists. The analysis hinges on the law's overbreadth, suggesting that eavesdropping statutes must be more narrowly tailored to the specific government interest of protecting actual privacy to be constitutional.
