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Seventh Circuit Bars Use of Illinois Law To Prosecute Citizens For Videotaping Police And Slams Cook County State’s Attorney Alvarez For “Extreme” Views

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.
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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.

Source: Chicago Tribune as first seen on ABA Journal.

46 thoughts on “Seventh Circuit Bars Use of Illinois Law To Prosecute Citizens For Videotaping Police And Slams Cook County State’s Attorney Alvarez For “Extreme” Views”

  2. It’s so nice to hear about the occasional sane ruling. Now what has to be done to officially get rid of this idea that Police Officers that are on duty have a right to privacy while preforming those duties? There have to be many cases of employers winning the right to video their employees while they are at work. I know the building I work in has cameras everywhere. Why shouldn’t the employer of the police ( the taxpayers) be allowed to video them under the same precedents?

  3. “The offense is normally a class 4 felony but is elevated to a class 1 felony – with a possible prison term of four to fifteen years – if one of the recorded individual is performing duties as a law-enforcement officer.”

    Isn’t that fascinating?
    It accords greater rights/privileges to an agent of the state than it does to a citizen.
    The agent of the state is acting on behalf of – and presumably is answerable to – “we the people”.

    It’s a very clear “you the peasants” coming from the state.
    It doesn’t sound *very* Constitutional.

  4. Judge Posner’s reasoning is all over the board and all overboard. His dissent is a transparent effort to defend authoritarianism by erroneously asserting a protected privacy interest in the public actions of public officials. Police officers cannot claim a zone of privacy in which to operate in public. They are instead entitled to a zone of security, which is a different issue entirely. But the Illinois statute does not concern itself with security; its purpose is to shield public actions from public view, purely and simply. The ruling should have been unanimous.

    On a more positive note, Judge Posner would make a very good candidate for membership in the Society of St. Pius X.

  5. From the CA case: “Video and audio recordings of the incident were the centerpiece of the prosecution’s case and provided a graphic backdrop to the hearing. It was the first time the surveillance video — paired with AUDIO FROM A RECORDING DEVICE WORN BY ONE OF THE OFFICERS — was shown.” [emphasis added]

    Sykes re: IL law: “The statute covers any communication regardless of whether the communication was intended to be private. The offense is normally a class 4 felony but is elevated to a class 1 felony – with a possible prison term of four to fifteen years – if one of the recorded individual is performing duties as a law-enforcement officer.”

    I wonder where the device used in CA would fall if it were in IL?

  6. @anon: I suppose if your computer records and emails can be used against you, so could your recordings.

    All the more reason to use encryption and store them only at your attorney’s office, where they could be considered “privileged communication,” which can be revealed with your consent and not without it, right?

  7. @TonyC,

    Of course, there are dangers too. One is that you won’t have to pay hundreds of dollars for such a device but that the device will be “given” to you, for free, even.

    Or that the recordings will not be subject to 4th or 5th Amendment protections.

    But if I were a young, attractive, 20-something law student performance artist, I would definitely build some device like that and go around challenging stupid no recording laws, like the one at the Supreme Court.

  8. Sauce for the goose…. It is time that each car sold in America be fitted with cameras fitted in the front, rear and sides. Every wheelchair should be so fitted. It is also time for the occupy movement to locate the Seventh Circuit and hold up some signs for the Posner puppet of Nazi rule.

  9. @anon: It could be linked to my cell phone, it has Internet access, and plenty of storage to use as a buffer between hot spots. Plus I am pretty sure I could talk my attorney into hosting a “secure location” in his offices. Plus lets encrypt the data stream.

  11. @anon: I would pay several hundred dollars for the Gordon Bell device; that would be awesome. And I would pay several hundred more to upload the pictures and audio by wifi to a more secure location, so if my device happened to be destroyed by jack-booted thuggery, I would still have my pictures and recordings.

  13. This is a victory for the First Amendment. Posner showed his true colors. Does Judge Posner have any problems with the police and the government filming citizens in public on a daily basis? What is good for the goose is good for the gander. It looks like Judge Posner is fishing for a Supreme court gig. He would fit in very nicely with the radical corporatist majority.

  15. We’ve already seen several cases where computers scientists and artists have had computational devices surgically installed in their bodies.

    Then there’s Gordon Bell, a famous computer scientist(first at DEC then at Microsoft) who wears a little camera around his neck that takes a picture every 30 seconds or so. A sound recorder rolls non-stop. http://www.cbsnews.com/2100-18563_162-2665593.html

    Soon there will be wearable/implantable videorecorders that non-stop record and upload everything some citizen encounters. Yes, it will be done by either artists or computer scientists, but at that point, what will the law do when these people encounter the cops or attend a Supreme Court hearing?

    Will the Supreme Court say that certain people with eternal broadcast/upload recorders implanted in their body cannot enter the court when it is in session?

    If I had the money, I would sell such systems for cars. It would be pretty easy to do so, it can be done right now with a car dashboard camera (retailing for $150), and an eye-fi SD card, and a cell plan allowing tethering use.

  18. I love Posner’s phrase “candor of conversations”.
    Perhaps the problem for the cops could be solved by them being less “candid”?
    “Candid” is this context would range from ‘being an idiot/incompetent’ through ‘misbehaviour’ to ‘criminal act’.

  19. Hear hear! (pun intended).

    A good decision; transparency and truth are never bad. Perhaps this will have a chilling effect on jack-booted thuggery, extortion, unwarranted tasing, shooting, and general bullying.

  20. there are occasions of dim light breaking through the daily load of stupidity being dumped on us. Congratulations to the justices of the 7th for this effort toward rationality

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