CHICAGO - Responding to a series of incidents in which individuals in four counties in Illinois have been charged with violating Illinois' eavesdropping law for making audio recordings of public conversations with police, the American Civil Liberties Union of Illinois today asked a federal court to rule that the First Amendment bans such prosecutions. The ACLU lawsuit, filed in federal district court in Chicago, argues that individuals (and organizations such as the ACLU) may make audio (and video) 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.
The case is of particular import because the law is being used 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.) In Chicago, State's Attorney Anita Alvarez currently is prosecuting an individual for violating the eavesdropping statute by recording police officers.
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 ACLU recently felt the limitation of this law. The media reported that Chicago police were conducting random searches of bags and backpacks of individuals who were passing by Chicago beaches on the pathway that runs adjacent to the beach and Lake Shore Drive. When the ACLU investigated, it could not use widely available audio/video recording devices - like the smart phones carried by millions of Americans - to document police activity and conversations, because doing so would risk arrest or prosecution.
"There is a lot of talk about the need for more transparency in government - we should demand that transparency from the police," said Harvey Grossman, Legal Director for 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."
"Illinois' eavesdropping law does not permit individuals or groups such as ours to gather critical information about police activities - information that we share with our members, policy makers and the general public," Grossman added.
The lawsuit was filed against Anita Alvarez as the State's Attorney of Cook County. She is sued in her official capacity 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 information about the police, to share such information with the public, and to use such information to petition government for redress or grievances or policy changes. 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.
"It is not acceptable that an organization such as the ACLU of Illinois is threatened with prison time for conducting legitimate investigations into police action in Illinois," said Adam Schwartz, Senior Staff Counsel for the ACLU of Illinois. "We should not be forced to choose between fulfilling our mission and risking prison time for staff members."
"If this law stays in force, it will remain difficult for many citizens in Illinois to monitor and seek reform of police practices," added Richard O'Brien, a lawyer with the Chicago office of Sidley Austin LLP who is cooperating with the ACLU on this case. "It is time to change this law and let transparency shine into the practices of our law enforcement agencies."
Assisting Grossman, Schwartz and O'Brien on the case are Linda R. Friedlieb and Matthew D. Taksin of Sidley Austin LLP and Karen Sheley of the ACLU of Illinois.