From ACLU v. Alvarez (7th Cir. May 8, 2012) (Judge Sykes joined by Judge Hamilton, with Judge Posner dissenting):
We reverse and remand with instructions to allow the amended complaint and enter a preliminary injunction blocking enforcement of the eavesdropping statute as applied to audio recording of the kind alleged here.
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 re cording 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 content-neutral 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 free-speech and free-press guarantees.
I’m just beginning to read the opinions, but I wanted to flag the key holding. [UPDATE: Sorry, meant to also say that this decision reaches pretty much the same result as Glik v. Cunliffe (1st Cir. 2011), which I blogged about last year.]
UPDATE: A few follow-up thoughts:
1. The opinion specifically sets aside the question whether state law could (1) ban surreptitious interception even of public communications, and (2) ban surreptitious interception of communications that the parties would reasonably expect to remain private. (“[T]his case has nothing to do with private conversations or surreptitious interceptions.” “We are not suggesting that the First Amendment protects only open recording. The distinction between open and concealed recording, however, may make a difference in the intermediate-scrutiny calculus because surreptitious recording brings stronger privacy interests into play.”). For an example of a state high court decision that affirmed a citizen’s conviction for surreptitiously recording his encounter with the police, see Commonwealth v. Hyde (Mass. 2001), though the court did not discuss the First Amendment.
But I think the Seventh Circuit’s reasoning should apply to a person’s surreptitious recording of his interactions with the police in the course of their jobs, and not just to open recordings. Among other things, even content-neutral restrictions are immune from strict scrutiny only if they are narrowly tailored to an important government interest and leave open adequate alternative channels for speech (or, here, for gathering the information needed to speak). The Seventh Circuit didn’t decide whether this adequate alternative channels requirement was satisfied here (because it found the law to be overinclusive with respect to any privacy interests that might justify a narrower law), and wasn’t certain that the factor applies to information gathering restrictions, though I think it should so apply given that information gathering restrictions may burden the ability to speak much like direct speech restrictions would. Yet it did suggest that bans on recording information don’t leave open adequate alternative channels:
We note, however, that audio and audiovisual recording are uniquely reliable and powerful methods of preserving and disseminating news and information about events that occur in public. Their self-authenticating character makes it highly unlikely that other methods could be considered reasonably adequate substitutes.
And this is also true of surreptitious recording, since often surreptitious recording will yield more accurate information about how police officers actually behave in ordinary interactions with citizens (as opposed to how they behave when they know that their statements could be heard that day on the evening news).
2. Here’s the heart of the majority’s argument for why the First Amendment at least presumptively protects audiorecording, though subject to possible content-neutral restrictions that are narrowly tailored to an important government interest (perhaps only if they leave open adequate alternative channels):
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.
This is a straightforward application of the principle that “[l]aws enacted to control or suppress speech may operate at different points in the speech process.” Citizens United v. FEC, 130 S. Ct. 876, 896 (2010). The Illinois eavesdropping statute regulates the use of a medium of expression; the Supreme Court has recognized that “regulation of a medium [of expression] inevitably affects communication itself.” City of Ladue, 512 U.S. at 48 (invalidating an ordinance banning residential signs). Put differently, the eavesdropping statute operates at the front end of the speech process by restricting the use of a common, indeed ubiquitous, instrument of communi cation. Restricting the use of an audio or audiovisual recording device suppresses speech just as effectively as restricting the dissemination of the resulting recording….
As our colleagues in the Ninth Circuit have observed, there is no fixed First Amendment line between the act of creating speech and the speech itself:
Although writing and painting can be reduced to their constituent acts, and thus described as conduct, we have not attempted to disconnect the end product from the act of creation. Thus, we have not drawn a hard line between the essays John Peter Zenger published and the act of setting the type. Cf. Minneapolis Star & Tribune Co. v. Minn. Comm’r of Revenue, 460 U.S. 575, 582 (1983) (holding that a tax on ink and paper “burdens rights protected by the First Amendment”). The process of expression through a medium has never been thought so distinct from the expression itself that we could disaggregate Picasso from his brushes and canvas, or that we could value Beethoven without the benefit of strings and woodwinds. In other words, we have never seriously questioned that the processes of writing words down on paper, painting a picture, and playing an instrument are purely expressive activities entitled to full First Amendment protection.
This observation holds true when the expressive medium is mechanical rather than manual. For instance, “[i]f the state were to prohibit the use of projectors without a license, First Amendment coverage would undoubtedly be triggered. This is not because projectors constitute speech acts, but because they are integral to the forms of interaction that comprise the genre of the cinema.”
The Supreme Court’s campaign-finance cases illustrate how laws of this sort trigger First Amendment scrutiny. The Court held long ago that campaign-finance regulations implicate core First Amendment interests because raising and spending money facilitates the resulting political speech. See Buckley v. Valeo, 424 U.S. 1, 19 (1976) (per curiam) (restricting money spent on political communications “necessarily reduces the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached”); see also Citizens United, 130 S. Ct. at 898 (invalidating the federal ban on corporate and union spending for political speech because the government may not “repress speech by silencing certain voices at any of the various points in the speech process”); McConnell v. FEC, 540 U.S. 93, 252 (2003) (Scalia, J., concurring in part and dissenting in part) (“The right to speak would be largely ineffective if it did not include the right to engage in financial transactions that are the incidents of its exercise.”); Nixon v. Shrink Mo. Gov’t PAC, 528 U.S. 377, 400 (2000) (Breyer, J., concurring) (“[A] decision to contribute money to a campaign is a matter of First Amendment concern-not because money is speech (it is not); but because it enables speech.”).
So too with laws that restrict audio recording. Audio and audiovisual recording are communication technologies, and as such, they enable speech. Criminalizing all nonconsensual audio recording necessarily limits the information that might later be published or broadcast — whether to the general public or to a single family member or friend — and thus burdens First Amendment rights. If, as the State’s Attorney would have it, the eavesdropping statute does not implicate the First Amendment at all, the State could effectively control or suppress speech by the simple expedient of restricting an early step in the speech process rather than the end result. We have no trouble rejecting that premise. Audio recording is entitled to First Amendment protection.
3. Judge Posner begins by generally articulating a rather narrow view of the First Amendment than the majority does, but I think the heart of his analysis comes near the end of the opinion:
A person who is talking with a police officer on duty may be a suspect whom the officer wants to question; he may be a bystander whom the police are shooing away from the scene of a crime or an accident; he may be an injured person seeking help; he may be a crime victim seeking police intervention; he may be asking for directions; he may be arguing with a police officer over a parking ticket; he may be reporting a traffic accident. In many of these encounters the person conversing with the police officer may be very averse to the conversation’s being broadcast on the evening news or blogged throughout the world….
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.
The majority opinion disclaims any intention of “immuniz[ing] behavior that obstructs or interferes with effective law enforcement.” I am not reassured. A fine line separates “mere” recording of a police-citizen encounter (whether friendly or hostile) from obstructing police operations by distracting the officers and upsetting the citizens they are speaking with. Today’s ruling may cause state and federal judicial dockets in Illinois to swell because it will unwittingly encourage police officers to shoo away bystanders, on the authority of cases like Colten v. Kentucky, 407 U.S. 104, 109-10 (1972); cf. City of Houston v. Hill, 482 U.S. 451, 462 n. 11 (1987); King v. Ambs, 519 F.3d 607, 613-15 (6th Cir. 2008), when the officer wants to have a private conversation in a public place.
Police may have no right to privacy in carrying out official duties in public. But the civilians they interact with do. The majority opinion “acknowledge[s] the difference in accuracy and immediacy that an audio recording provides as compared to notes or even silent videos or transcripts” but says that “in terms of the privacy interests at stake, the difference is not sufficient to justify criminalizing this particular method of preserving and publishing the public communications of these public officials” (emphasis in original). The assertion lacks a supporting argument, and by describing the recording as a “method of preserving and publishing the public communications of these public officials” neglects the fact that the recording will publish and preserve what the civilians with whom the police are conversing say, not just what the police say.
The further statement that these “are not conversations that carry privacy expectations even though uttered in public places” implies that anything said outdoors is ipso facto public. Yet people often say things in public that they don’t expect others around them to be listening to, let alone recording for later broadcasting, and we are given no reason to think that this is never the case when someone complains to a police officer, or otherwise speaks with one, “in public” in the sense of being in a place in which there are other people about.
Suppose a police detective meets an informant in a park and they sit down on a park bench to talk. A crime reporter sidles up, sits down next to them, takes out his iPhone, and turns on the recorder. The detective and the informant move to the next park bench to continue their conversation in private. The reporter follows them. Is this what the Constitution privileges?
It is small consolation to be told by the majority that “the ACLU plans to record openly, thus giving the police and others notice that they are being recorded” (emphasis in original). All the ACLU means is that it won’t try to hide its recorder from the conversants whom it wants to record, though since the typical recorder nowadays is a cell phone it will be hidden in plain view. A person who doesn’t want his conservation to be recorded will have to keep a sharp eye out for anyone nearby holding a cell phone, which in many urban settings is almost everyone. The ubiquity of recording devices will increase security concerns by distracting the police.
There is more on the state’s side of this case than privacy of communications and the effectiveness of law enforcement — and the more is the same First Amendment interest that the ACLU says it wants to promote. The majority opinion concedes that “conversational privacy” “serves First Amendment interests,” but thinks there can be no conversational privacy when the conversation takes place in a public place; it says that “this case has nothing to do with private conversations.” But private talk in public places is common, indeed ubiquitous, because most people spend a lot of their time in public places; because they rely on their anonymity and on the limited memory of others to minimize the risk of publication; because public places are (paradoxically) often more private than private places (imagine if detectives could meet with their informants only in police stations); and because eavesdropping on strangers is actually rather uncommon because it is so difficult in most cases to understand a conversation between strangers…
I disagree with the majority that “anyone who wishes to speak to police officers in confidence can do so,” and “police discussions about matters of national and local security do not take place in public where bystanders are within earshot.” Forget national security; the people who most need police assistance and who most want their conversations kept private are often the people least able to delay their conversation until they reach a private place. If a person has been shot or raped or mugged or badly injured in a car accident or has witnessed any of these things happening to someone else, and seeks out a police officer for aid, what sense would it make to tell him he’s welcome to trot off to the nearest police station for a cozy private conversation, but that otherwise the First Amendment gives passersby the right to memorialize and publish (on Facebook, on Twitter, on YouTube, on a blog) his agonized plea for help? And as in our informant example, many of the persons whom police want to talk to do not want to be seen visiting police stations.
Accuracy is a social value, and a recording of a conversation provides a more accurate record of the conversation than the recollection of the conversants: more accurate, and also more truthful, since a party to a conversation, including a police officer, may lie about what he heard or said. But on the other side of the balance are the inhibiting effect of nonconsensual recording of conversations on the number and candor of conversations (and hence on values that the First Amendment protects); the baleful effect on privacy; the negative effect on law enforcement; and the litigation likely to be engendered by police officers’ shooing away intruders on their private conversations with citizens. These are significant social costs, and the majority opinion offers no basis in fact or history, in theory or practice, in constitutional text or judicial precedent, for weighting them less heavily than the social value of recorded eavesdropping.
I think the majority is on balance correct, but Judge Posner’s argument is interesting and important.