September 13, 2011 1:01 pm

ACLU asks appeals court to prevent future prosecutions for recording public conversations with police

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CHICAGO – The American Civil Liberties Union of Illinois today asked a federal appellate court to block future prosecutions of the ACLU and its staff members for recording police officers performing their public duties in a public space as a violation of the First Amendment. The oral argument on Tuesday morning is the latest action in an ACLU lawsuit filed in federal court in August of 2010. The ACLU of Illinois is defending its program monitoring police conduct and practices on the streets of Chicago. The information that the ACLU gathers in monitoring protests and other events is used to advocate for changes in police policies. The use of the eavesdropping statute to prosecute individuals who make recordings of police when they interact with individuals on the streets means that the ACLU is barred from making audio recordings of police who are performing their public duties in a public place and speaking in a voice loud enough to be heard by the unassisted human ear.

In short, if employees of the ACLU made such recordings, they would have to risk prosecution for a class 1 felony and prison sentences of up to 15 years.

Adam Schwartz, Richard O'Brien and Harvey Grossman after the court hearing

The case has garnered a great deal of attention because the Illinois eavesdropping law is being used all over the state to arrest and prosecute those who want to monitor police activity in order to deter or detect any police misconduct. In Champaign a few years ago, for example, a group of community activists attempting to document police practices in predominantly African American neighborhoods were charged with violating the Illinois eavesdropping law when they filmed and recorded police interactions with citizens in the public way. (The charges were dropped only after the installation of a new states attorney.)

Illinois’ eavesdropping law criminalizes the recording of certain non-private conversations, one of a small handful of states that does so. Similar prosecutions have occurred in other states, including Massachusetts and Maryland. Yet even as the Illinois law criminalizes civilians who audio record police, the law allows police to audio record civilians during traffic stops and in other situations. The U. S. Court of Appeals for the First Circuit recently ruled that prosecutions for openly recording police in the performance of their duties—the same activity in which the ACLU seeks to engage– violates the First Amendment.

“In order to make the rights of free expression and petition effective, individuals and organizations must be able to freely gather and record information about the conduct of government and its agents– especially the police,” said Harvey Grossman, Legal Director of the ACLU of Illinois. “Organizations and individuals should not be threatened with prosecution and jail time simply for monitoring the activities of police in public, having conversations in a public place at normal volume of conversation.”

“The State’s Attorney’s position – that the ACLU can monitor police activity, take photograpghs, video, and even make notes of police conversations in public but not audio record those conversations – is not consistent with rights of free speech. This is particularly true with the evolution of new technologies that make the recording and disemination of pictures and sound inexpensive, efficient and easily accessible to each of us,” Grossman added.

The ACLU’s appeal is supported by a number of national news organizations concerned with restraints on the First Amendment. Among the groups to sign on to an amicus curiae brief in favor of the ACLU’s position are: the Illinois Press Association, the Reporters Committee for Freedom of the Press, the American Society of Newspaper Editors, the Association of Capitol Reporters and Editors, the Citizens Media Law Project, the National Press Photographers Association, the Radio-Television Digital News Association and the Society of Professional Journalists.

The lawsuit was filed in August 2010 against Cook County States Attorney, as a prosecutor charged with enforcing the law. The ACLU of Illinois argues that the law infringes on the First Amendment right of individuals and organizations to gather and record information about the police, to share such information with the public, and to use such information to petition government for redress or grievances. The ACLU seeks a court declaration and injunction against the application of Illinois’ eavesdropping law to audio recording police performing their public duties in a public place while speaking in a voice audible to the unassisted ear.

“We hope the Appeals Court will act swiftly to strike down this application of the eavesdropping law.” added Adam Schwartz Senior Staff Counsel for the ACLU of Illinois. “If one can be prosecuted for recording a police officer doing their public duty in a public space, truly effective monitoring of police by the citizens of Illinois will remain out of reach. It is time to constrain the bounds of this law and bring transparency to the practices of our law enforcement agencies.”

Lawyers on the case include Harvey Grossman, Adam Schwartz and Karen Sheley of the ACLU of Illinois, as well as Richard O’Brien (who argued the case for the ACLU of Illinois), Linda R. Friedlieb Robert D. Leighton and Matthew D. Taksin of Sidley Austin LLP.