Legal Commentary

Court Rejects Claim of a First Amendment Right to Audio-Record Police Officers

By Eugene Volokh

From ACLU v. Alvarez (N.D. Jan. 10, 2011):

The American Civil Liberties Union of Illinois (?the ACLU?) sues Anita Alvarez, in her official capacity as Cook County State?s Attorney, seeking declaratory and injunctive relief with respect to the Illinois Eavesdropping Act, 720 ILCS 5/14 ....

To assist in deterring and detecting police misconduct, the ACLU has developed a program to ?audio record police officers, without the consent of the officers, when (a) the officers are performing their public duties, (b) the officers are in public places, (c) the officers are speaking at a volume audible to the unassisted human ear, and (d) the manner of recording is otherwise lawful.? ... [But t]he ACLU, Connell and Carter have not carried out the ACLU?s program due to fear of prosecution by the State?s Attorney under the Act. The Act provides that a first offense of nonconsensual eavesdropping is a Class 4 felony. ?A person commits eavesdropping when he ... [k]nowingly and intentionally uses an eavesdropping device for the purpose of hearing or recording all or any part of any conversation ... unless he does so ... with the consent of all of the parties to such conversation, ...? The ACLU, Connell and Carter cite [nine] pending prosecutions of individuals under the Act ....

The ACLU has cured the limited standing deficiencies addressed in the memorandum opinion dismissing the original complaint by sufficiently alleging a threat of prosecution. However, the credible, imminent threatened injury must implicate a constitutional right. The ACLU has not alleged a cognizable First Amendment injury. The ACLU cites neither Supreme Court nor Seventh Circuit authority that the First Amendment includes a right to audio record. Cf. Potts v. City of Lafayette, Indiana, 121 F.3d 1106, 1111 (7th Cir.1997) (?there is nothing in the Constitution which guarantees the right to record a public event? ?). Amendment would therefore be futile....

The State?s Attorney argues that a ?willing speaker? must exist to implicate the First Amendment?s right to free speech, Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 756 (1976).... The ACLU intends to audio record police officers speaking with one another or police officers speaking with civilians. The ACLU?s program only implicates conversations with police officers. The ACLU does not intend to seek the consent of either police officers or civilians interacting with police officers. Police officers and civilians may be willing speakers with one another, but the ACLU does not allege this willingness of the speakers extends to the ACLU, an independent third party audio recording conversations without the consent of the participants. The ACLU has not met its burden of showing standing to assert a First Amendment right or injury....

Amendment would be futile. The ACLU has not alleged a constitutional right or injury under the First Amendment. Rather, the ACLU proposes an unprecedented expansion of the First Amendment....

The ACLU?s earlier motion for a preliminary injunction cites some cases that reached the opposite result.

Full post as published by The Volokh Conspiracy on January 14, 2011 (boomark / email).