Federal Court Adds Voice To Lower Court Rulings
IL Law “Most Likely” Violates First Amendment Rights To Free Speech and Free Press
One day after Chris Drew, the artist that was arrested for filming his own arrest died of lung cancer, the 7th Court of Appeals handed the Illinois Eavesdropping a sternly worded rebuke. Most cases charged under this law prosecuted Citizens recording Police Officials, yet the 7th Court of Appeals made it clear that the Illinois eavesdropping statute is excessively broad and most likely unconstitutional.
“The court further noted that the making of an audio or audiovisual recording is covered by the First Amendment’s guarantee of speech. Therefore, the “First Amendment limits the extent to which Illinois may restrict … recording of utterances that occur in public.”
This is good news for Citizens, especially those that have had their Civil Rights violated by being arrested and charged with a Class 1 Felony. Technically the ruling only applies to the ACLU in Chicago, but it is likely State’s Attorneys will review this ruling to advise local law enforcement. From this Citizens point of view, it would seem a bit crazy to charge any Citizen with under this the law as written today given this ruling on the 2010 case put forward by the ACLU.
No matter how this ruling plays out, it is still advisable for anyone with a device that can record video to disable the audio capabilities if both parties of a conversation do not consent beforehand. Recording video without audio does not need any consent from any party whatsoever.
Pending in the 97th General Assembly is SB1808 that would gut existing exemptions under 720 IL CS 5/14-3 with:
“Replaces everything after the enacting clause. Amends the Criminal Code of 1961 concerning eavesdropping exemptions. Provides that a person who is not a law enforcement officer nor acting at the direction of a law enforcement officer may record the conversation of a law enforcement officer who is performing a public duty in a public place and any other person who is having a conversation with that law enforcement officer if the conversation is at a volume audible to the unassisted ear of the person who is making the recording. Defines “public place”. Amends the State Police Act and the Uniform Peace Officers’ Disciplinary Act. Provides that if a recorded conversation authorized under this exemption to the eavesdropping statute is used by the complainant as part of the evidence of misconduct against the officer and is found to have been intentionally altered by or at the direction of the complainant to inaccurately reflect the incident at issue, it must be presented to the appropriate State’s Attorney for a determination of prosecution. Effective immediately.”
Having said that, the statue would still be excessively vague and run afoul of the 7th Court of Appeals ruling on May 8th that stated the 1st Amendment protects recording “utterances” in public places. Illinois legislatures recently had the opportunity to fix the law, but refused and left the state at odd with most other states by sticking with “Two Party Consent”.
To add further confusion, if SB1808 passes and all exemptions revised the law would seem to open one door while closing another. In particular the existing exemption that allows one to record a conversation of someone other than a law enforcement person who has “reasonable suspicion” that another party to the conversation is about to commit or has already committed a crime. Now where this gets even more confusing is that the statue says no recording can be submitted to the police )if creating it didn’t occur under an exemption.) Then there is how “reasonable suspicion” gets interpreted as well as if there was a crime committed..
The simple approach would seem to be to not openly record audio or video with audio until the law is repealed or completely thrown out by the IL Supreme Court of SCOTUS. Although it is unclear how the State of Illinois would see any evidence so gathered, Hate Crimes, rise to the level of a Federal offense where there are no such prohibitions or warnings. Any evidence gathered would be admissible in Federal court. This court ruling is a massive blow against a law that has been twisted to protect law enforcement at by sacrificing a Citizen’s Constitutional protections.
This need to record surreptitiously is not necessary in Chicago because the cities top cop has already made it clear he will not enforce the law.
If I was in Nevada, I’d bet on IL 702 not surviving summer much less this year. If SB1808 passes, it has been suggested to me that multiple challenges will happen immediately. It is also likely that convictions will be reversed as cases are reviewed. Unfortunately, you don’t get a refund on your expenses though as a case in Boston, civil action has been a tool to make right what a bad law has tipped over.
Freedom is won, not given. The pursuit of Justice is an ongoing process that does not go without risks.