We previously discussed the rather shocking treatment Seventh Circuit Judge Richard Posner gave an ACLU lawyer over the right of citizens to videotape police in public. As discussed in prior columns and blogs, police across the country have been arresting citizens who film them — a clear abuse of their rights and an effort to prevent citizens from creating incriminating videotapes increasingly used against police. The Seventh Circuit has now barred the use of the law to prosecute citizens for videotaping. Posner dissented and showed, again, a dismissive view of the rights of the citizens vis-a-vis police. The court majority slams State’s Attorney Anita Alvarez for her extreme views expressed in the case and effort to strip videotaping of constitutional protections.
Cook County has been on the forefront of cracking down on citizens attempting to film police. The Illinois law allows for sentences of up to 15 years in prison for those who record audio of police conversations without consent. The ACLU challenged the law by saying that they wanted to film police to create a film as part of a “police accountability program.”
Judge Diane Sykes wrote in the majority opinion below that “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.”
Posner would have nothing of it: “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.” Posner insisted that the decision would prevent police from speaking with candor to citizens out of fear that they might be monitored — a rather implausible claim in my view. However, Posner insisted that this is about privacy rights — of officers and others speaking with them:
Accuracy is a social value, and a recording of a con- versation 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 eaves- dropping.
The ruling of the court is a further indictment of the campaign by Alvarez to reduce the rights of citizens in filming police and effectively deter the creation of videotape showing police abuse. The court details Alvarez’s extreme views:
On the merits the State’s Attorney has staked out an extreme position. She contends that openly recording what police officers say while performing their duties in traditional public fora—streets, sidewalks, plazas, and parks—is wholly unprotected by the First Amendment.
The court does a rather elegant discussion of forms of expression that are protected by the first amendment in rejecting Alvarez’s effort to strip videotaping of such protections:
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.
Alvarez attacked the ACLU for even bringing the lawsuit, calling the challenge is “advocacy under the guise of First Amendment infringement.” It is not clear what Alvarez would view as such advocacy since many citizens have condemned her threats under the law as an effort to chill efforts to target police abuse. The court clearly shares the confusion:
We confess we do not understand the point. The ACLU’s status as an advocacy organization hardly defeats its standing. The organization intends to use its employees and agents to audio record on-duty police officers in public places. The ACLU claims a First Amendment right to undertake this recording, but the eavesdropping statute prohibits it from doing so. The ACLU itself, and certainly its employees and agents (Connell, Carter, and others), will face prosecution for violating the statute. Nothing more is needed for preenforcement standing.