Posner Ridicules Right of Citizens To Film Police in Seventh Circuit Oral Argument

Judge Richard A. Posner is a legal icon who has had more impact on the development of the law. As the father of the Law and Economics movement, Posner’s writings are featured heavily in my classes as well as other classes around the country. While I disagree with him, I have tremendous respect for his scholarship and jurisprudence. However, a recent oral argument revealed a less flattering side of the former University of Chicago professor. Faced with an attorney from  the American Civil Liberties Union in a case involving the right of citizens to film police in public, Posner cut him off after 14 words and spoke derisively of the right of citizens and groups to engage in such protected conduct.

At issue was the constitutionality of the Illinois wiretapping law, which makes it illegal to record someone without his consent even when filming public acts like arrests in public. Poser was one of three judges and interrupted the ACLU after just 14 words, stating “Yeah, I know,. But I’m not interested, really, in what you want to do with these recordings of peoples’ encounters with the police.” Really? That happened to go to first amendment value of the proscribed conduct.

Posner continued: “Once all this stuff can be recorded, there’s going to be a lot more of this snooping around by reporters and bloggers . . . I’m always suspicious when the civil liberties people start telling the police how to do their business.” Unbelievable. All these videos do is make a record of police conduct. The conduct is either abusive or nonabusive. Not filming an abusive arrest does little beyond protecting unlawful conduct. Otherwise the film vindicates the conduct of officers.

Illinois legislators and prosecutors have taken on the lead in fighting the right of citizens to observe and record the conduct of police. Posner’s view is thankfully not shared by other judges. Last month, the United States Court of Appeals for the First Circuit handed down a the opinion below in the case of Simon Glik, a lawyer who was arrested for filming officers in what he viewed as an excessive use of force. Here is the description of the court:

As he was walking past the Boston Common on the evening of October 1, 2007, Simon Glik caught sight of three police officers — the individual defendants here — arresting a young man. Glik heard another bystander say something to the effect of, “You are hurting him, stop.” Concerned that the officers were employing excessive force to effect the arrest, Glik stopped roughly ten feet away and began recording video footage of the arrest on his cell phone.
After placing the suspect in handcuffs, one of the officers turned to Glik and said, “I think you have taken enough pictures.” Glik replied, “I am recording this. I saw you punch him.” An officer then approached Glik and asked if Glik’s cell phone recorded audio. When Glik affirmed that he was recording audio, the officer placed him in handcuffs, arresting him for, inter alia, unlawful audio recording in violation of Massachusetts’s wiretap statute. Glik was taken to the South Boston police station. In the course of booking, the police confiscated Glik’s cell phone and a computer flash drive and held them as evidence.

He was then charged with violation of the wiretap statute, Mass. Gen. Laws ch. 272, § 99(C)(1), disturbing the peace, id. ch. 272, § 53(b), and aiding in the escape of a prisoner. The panel showed a far more balanced view than articulated by Posner in cutting off the ACLU’s lawyer in Illinois:

In our society, police officers are expected to endure significant burdens caused by citizens’ exercise of their First Amendment rights. See City of Houston v. Hill, 482 U.S. 451, 461 (1987) (“[T]he First Amendment protects a significant amount of verbal criticism and challenge directed at police officers.”). Indeed, “[t]he freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state.” Id. at 462-63. The same restraint demanded of law enforcement officers in the face of “provocative and challenging” speech, id. at 461 (quoting Terminiello v. Chicago, 337 U.S. 1, 4 (1949)), must be expected when they are merely the subject of videotaping that memorializes, without impairing, their work in public spaces.

What astonishes me is that government officials are pushing this effort to block this basic right of citizens and perhaps the single most important form of evidence against police abuse. Absent such film, these allegations are often dismissed as unsupported by the citizens and denied by the officers.

As someone who admires Posner’s contributions to the law, it is disappointing to read such biased and dismissive comments in a free speech case. For police wondering “who will rid us of these meddling citizens?,” they appear to have one jurist in Illinois not just ready but eager to step forward.

First Circuit opinion: Glik

69 thoughts on “Posner Ridicules Right of Citizens To Film Police in Seventh Circuit Oral Argument”

  1. If it is legal for me to witness and report on an event how can it be illegal for me to provide evidence to support my claims?

  2. Instead of trying push through conceal and carry legislation here in Illinois, maybe we should be pushing through conceal and carry video recorder legislation. Packing takes on a whole new meaning.
    AY,
    Yes, star chamber does come to mind. A good movie too!

  3. I am wondering what Posner has to fear….There is a moment to allow Public Access TV inside the Judges Chambers when they are deciding a case….Hence…anytime a quorum meets….Then this would possibly open up the court to FOIA which at the present time they are exempted….

    I do not know about you all but, this reminds me of a type of star chamber…

  4. “Once all this stuff can be recorded, there’s going to be a lot more of this snooping around by reporters and bloggers”

    WWTFD? *

    * What Would The Founders Do?

  5. “What astonishes me is that government officials are pushing this effort to block this basic right of citizens and perhaps the single most important form of evidence against police abuse. Absent such film, these allegations are often dismissed as unsupported by the citizens and denied by the officers.”

    It horrifies me, but doesn’t surprise me at all. Way back when the big issue was “Law and Order” (meaning stop those “coloreds”), the trend of police excess was being imprinted with license to “save” us from the ills of society. The trend has gone steadily downward since those days and many constitutional defenders in their relative youths, have become less tolerant in their dotage. I can tell you from my own experience of aging, that flexibility of mind needs constant effort, lest rigidity of fear sets in.

  6. Frankly,

    I think because that is a proper government function…and paid for by Homeland Security Dollars….I am sure that they would be upheld. I think I read someplace….that the HSA headquarters is going to be bigger than the pentagon….Makes me wish I was a government contractor….I have some hammers to sell….Maybe NASA needs more toilet seats…

  7. AY – I think, unless I consent then any security camera is unlawful. Almost makes me wish I were a lawyer, I see big bucks in the criminal defense business 🙂

  8. Just to be clear (besides misspelling the second ‘breaking) I get the audio feature but it is the filming they are objecting to & several municipalities have attempted to ban unauthorized filming of the police.

  9. Frankly,

    You bring up an interesting point….Are the Cop Cameras/Intersection Cameras breaking the law….

  10. So, if I was filming my families vacation at Disneyland & just happened to get other people in the shot (How could such a thing happen?!?) I would be breaking the law, is that correct?

    If I had a security camera on my office building & it caught scenes of people passing by the building I would be braking the law, right?

    This sounds more like anal arguments than oral as he must be talking out is . . .

  11. Maybe it is time for Posner to retire. I would hope he would have a different opinion f he was being abused by police officers and no one stepped in to help or to address the police misconduct!

  12. Efficient Breach of Contract?

    Not for nothing, but wouldn’t the violation of the ‘the Illinois wiretapping law, which makes it illegal to record someone without his consent even when filming public acts like arrests in public’ constitute an efficient breach of contract furthering First Amendment freedoms and justice overall?

    Isn’t Posner contradicting his own principles here?

  13. You have to be kidding me right….If I recall he had a lot to do with the Anti-Trust laws….But that was a long time ago for me to recall.

  14. Talk about “Overcoming Law” …

    I keep trying to find an excuse for his actions and failing. This is a major disappointment.

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