Am. Civil Liberties Union of IL v. Alvarez, No. 11-1286 (7th Cir. 2012)

TLDR for ACLU v. Alvarez
● This case is about whether the First Amendment prevents Illinois from enforcing its eavesdropping statute to prohibit recording police officers performing their duties in public.

● The ACLU wants to record police officers performing their duties in public as part of their police accountability program.

● The Illinois eavesdropping statute makes it illegal to record any conversation without the consent of all parties, and this includes police officers.

● The ACLU argues that this violates their First Amendment rights because the right to publish information includes the right to gather it.

● The court found that the ACLU had standing to sue because the statute prohibits their intended actions, the state has prosecuted similar cases, and the state has not said they won’t prosecute the ACLU.

● The court found that the statute is content-neutral but is still subject to intermediate scrutiny because it could prevent recording of activities protected by the First Amendment.

● The court found that the statute is not sufficiently tailored to the government’s interest in protecting privacy because it prohibits recording even when there is no reasonable expectation of privacy, like when a police officer is performing their duties in public.

● The Seventh Circuit reversed the district court’s ruling, finding that the Illinois eavesdropping statute likely violates the First Amendment and instructed the district court to enter a preliminary injunction preventing enforcement of the law against the ACLU.

● Judge Posner dissented, arguing that this ruling could negatively impact privacy and public safety. He argued that the statute promotes First Amendment values because it protects the privacy of conversations, even those that take place in public, which could lead to more free and open conversations.

Summary of ACLU v. Alvarez

In American Civil Liberties Union of Illinois v. Alvarez, the Seventh Circuit Court of Appeals ruled that the Illinois Eavesdropping Act, as applied to the open recording of police officers performing their duties in public, likely violates the First Amendment. This decision has significant implications for First Amendment auditing, a practice where individuals record police activity in public to hold them accountable.

The court determined that the act of audio recording is a form of protected speech under the First Amendment. They argued that recording is analogous to note-taking or photography, which are protected as means of gathering and disseminating information. The court recognized the importance of government transparency and the public’s right to gather information about government activities. Therefore, they found that Illinois’s statute, by criminalizing a common method of recording, burdened First Amendment rights.

The court also examined whether the Illinois Eavesdropping Act should be considered content-based or content-neutral. While the law itself doesn’t target specific viewpoints, the ACLU argued that its enforcement requires analyzing the content of recordings. However, the court decided that this doesn’t automatically make the law content-based. They found that the exemption for law enforcement officers in the statute doesn’t constitute content-based discrimination because it doesn’t favor one group of private speakers over another.

Although the court leaned towards considering the law content-neutral, they ultimately concluded that even under the less stringent intermediate scrutiny, the Illinois Eavesdropping Act likely fails. The court acknowledged the state’s interest in protecting conversational privacy, but argued that this interest doesn’t apply to conversations held by police officers in public places, audible to bystanders.

Other Related Cases

The Seventh Circuit referenced several other cases relevant to this decision:

  • Glik v. Cunniffe: The First Circuit Court of Appeals ruled that openly recording police officers in public is protected under the First Amendment. The court reasoned that such recording is crucial for the public to hold government officials accountable and engage in discussions about government affairs.
  • Kelly v. Borough of Carlisle: The Third Circuit Court of Appeals reached a different conclusion regarding qualified immunity, stating that existing case law wasn’t sufficient to establish a clear First Amendment right to record police officers during a traffic stop. However, this case differed from ACLU v. Alvarez because it dealt with qualified immunity, not the constitutionality of the law itself.
  • Katz v. United States: This Supreme Court case established that the Fourth Amendment protects a “reasonable expectation of privacy,” which doesn’t extend to information knowingly exposed to the public. The Seventh Circuit applied this principle to argue that conversations held by police officers in public, audible to anyone present, lack a reasonable expectation of privacy and are therefore not protected by the Illinois Eavesdropping Act’s privacy justification.

The court in ACLU v. Alvarez disagreed with the dissenting opinion’s argument that this decision threatens the privacy of individuals interacting with police in public. They emphasized that their ruling hinges on the open nature of the recording and the lack of privacy expectations in conversations conducted by public officials, in public settings, that are easily audible to bystanders. The court maintained that citizens always have the option to request a private conversation with a police officer if they wish to keep their communication confidential.

What are the main arguments for and against the ACLU’s claim that the Illinois eavesdropping statute violates the First Amendment?

The Seventh Circuit’s decision in ACLU v. Alvarez centers around the core debate of whether openly recording police officers in public constitutes protected speech under the First Amendment. The ACLU argued that the Illinois Eavesdropping Act, which criminalizes recording conversations without consent from all parties, unconstitutionally restricts this form of speech. Here’s a breakdown of the main arguments:

Arguments Supporting the ACLU’s Claim:

  • Recording as Protected Speech: The ACLU’s primary argument hinges on classifying audio recording as a medium of expression protected by the First Amendment. They compared it to other forms of information gathering and dissemination like photography and note-taking, which are granted First Amendment protection. Restricting recording, they argued, is akin to restricting the subsequent publication or broadcast of the gathered information.
  • First Amendment Interest in Government Affairs: The ACLU highlighted the significant public interest in overseeing and discussing government actions, especially the conduct of law enforcement officers. They argued that recording police activity in public is crucial for transparency and accountability, aligning with the First Amendment’s protection of gathering and disseminating information about the government.
  • Incidental Burden on Privacy: The ACLU contended that the statute’s broad prohibition on recording any conversation without consent is not narrowly tailored to serve the state’s interest in protecting conversational privacy. They argued that conversations held by police officers in public, audible to those present, don’t carry a reasonable expectation of privacy, particularly when the recording is done openly. They drew support from Katz v. United States, which established that information knowingly exposed to the public is not protected by the Fourth Amendment.

Arguments Against the ACLU’s Claim (Presented by the State’s Attorney and the Dissenting Opinion):

  • Chilling Effect on Communication: The State’s Attorney argued that the broad scope of the Eavesdropping Act is necessary to protect conversational privacy, even in public settings. They maintained that the potential for recording might discourage individuals from speaking openly and candidly with police officers, especially when sensitive or confidential information is involved. They highlighted the importance of privacy as a social value that the First Amendment should also consider.
  • Disruption of Law Enforcement: Both the State’s Attorney and the dissenting opinion emphasized that allowing unrestricted recording of police interactions could hinder effective law enforcement. They suggested that officers might be distracted or feel pressured to modify their behavior when being recorded, potentially compromising their ability to address situations and ensure public safety.
  • Privacy Concerns of Civilians: While acknowledging the public nature of police activity, the dissenting opinion stressed that individuals interacting with officers in public still maintain privacy interests. The opinion argued that the majority’s view disregards the common occurrence of private conversations happening in public places, where individuals rely on anonymity and contextual cues to maintain confidentiality. The dissent argued that allowing recording of such conversations could have a “chilling effect” on free speech, discouraging open dialogue and exchange of information, particularly in sensitive situations.

The core disagreement lies in weighing the value of government transparency and the public’s right to record police activity against the potential harm to privacy, public safety, and the free flow of information between individuals and law enforcement.

The Level of Scrutiny Applied to the ACLU’s Claim

The Seventh Circuit in ACLU v. Alvarez did not definitively state which standard of scrutiny should be applied to the ACLU’s claim, but it did analyze the likely outcome under multiple standards. Here’s a breakdown:

Strict Scrutiny:

  • The ACLU argued that the Illinois Eavesdropping Act should be subject to strict scrutiny, the highest level of judicial review, because it restricts speech based on its content and discriminates among speakers. They claimed the law was content-based because its enforcement requires reviewing the content of recordings to determine if a violation occurred.
  • However, the court disagreed, stating that a law isn’t automatically content-based simply because a court must examine the content of a statement to determine if the law applies.
  • The ACLU also argued the law was content-based because it allows law enforcement officers to record conversations without consent, while prohibiting civilians from doing the same.
  • The court again disagreed, finding that this exemption doesn’t constitute content-based discrimination because it doesn’t prefer one group of private speakers over another. The court didn’t find the disparity between police and civilian recording rights to be a First Amendment concern in this case.

Intermediate Scrutiny:

  • While the court leaned towards considering the Illinois Eavesdropping Act content-neutral, they stated that the ACLU’s claim was likely to succeed “even under the less rigorous standards of scrutiny” that apply to content-neutral restrictions on speech.
  • They highlighted that the statute would, at a minimum, need to be justified under some form of intermediate scrutiny.
  • The court applied the principles of intermediate scrutiny by analyzing whether the law was narrowly tailored to serve the state’s interest in protecting conversational privacy. They ultimately found the statute likely failed this test because it prohibited a wide range of recordings, even those not involving private conversations.

Key Takeaway:

The court emphasized that the Illinois Eavesdropping Act burdens First Amendment rights because it restricts the use of audio recording, a “medium of expression”, and interferes with the public’s ability to gather information about government activities. Although they didn’t definitively settle on strict scrutiny, they concluded that the law likely fails even under the less demanding intermediate scrutiny standard because it isn’t narrowly tailored to serve the state’s interest in protecting privacy.

Audio Recording Police in Public

1. What does the Illinois eavesdropping statute say?

The Illinois eavesdropping statute makes it illegal to audio record “any part of any conversation” without the consent of all parties involved. This applies even if the conversation is not intended to be private.

2. Does the Illinois law differ from other states’ laws on recording conversations?

Yes, the Illinois law is unusually broad. It doesn’t require the recorded conversation to be private, unlike the federal wiretapping statute and most other states’ laws. Many states focus on prohibiting the recording of conversations where there is a reasonable expectation of privacy.

3. Why does the ACLU challenge the Illinois eavesdropping law?

The ACLU argues that the Illinois eavesdropping law violates the First Amendment rights to free speech and freedom of the press. They argue that recording police officers performing their duties in public is a form of gathering and disseminating information, which are protected activities.

4. How does recording police in public relate to the First Amendment?

The ACLU contends that openly recording police in public is similar to other forms of newsgathering protected by the First Amendment. They argue the act of recording is part of the protected process of gathering information for communication and publication.

5. What are the arguments for the eavesdropping statute?

The State’s Attorney defends the Illinois law as crucial for protecting personal conversational privacy, even in public spaces. They argue it also ensures police can do their job without undue fear of being recorded, which might hinder their actions or communications.

6. Does the law apply to media recording police in public?

The Illinois law exempts media recordings for broadcasts, but this doesn’t fully resolve the issue. The ACLU argues this exemption itself might be problematic as it could be seen as content-based discrimination, favoring certain speakers over others.

7. What is the “intermediate scrutiny” standard and how does it apply to this case?

“Intermediate scrutiny” is a legal test courts use to determine if a law that restricts speech is constitutional. It requires the government to demonstrate that the law serves an important interest, is narrowly tailored to achieve that interest, and leaves open other channels of communication.

8. How has the Seventh Circuit Court of Appeals ruled in this case?

The Seventh Circuit Court of Appeals ruled that the Illinois eavesdropping statute likely violates the First Amendment because it is not narrowly tailored to protect privacy interests. They found it overly broad in banning the recording of conversations that are not private, such as police interactions in public. The court reversed a lower court ruling and instructed it to enter a preliminary injunction preventing the law’s enforcement against individuals openly recording police officers in public.