First Amendment Protects Citizens’ Rights To Record Police Activities

Yesterday the United States Supreme Court declined to review a 2-1 decision of the Seventh Circuit Court of Appeals holding that the public has a First Amendment right to record (both audio and audiovisual) the conduct of government officials, including police officers, while they are performing their official duties in public.  Although the denial of a petition for certiorari does not mean that the Supreme Court agreed with the court of appeal’s decision, the high court’s refusal to consider the case is likely to be viewed as a positive development by individuals and organizations who are concerned with the notion of a police officer arresting a bystander–who is not interfering with the officer–simply because he used his cell phone to record something the officer was doing.

The Seventh Circuit case, ACLU v. Alvarez (2012), considered the constitutionality of an Illinois law that made it a felony, punishable by imprisonment for four to fifteen years, to make an audio recording of a person without his or her permission.  The Seventh Circuit held that the statute, as applied to the facts of the case, violated the First Amendment right to freedom of speech and of the press.  Here is the key holding:

We reverse and remand with instructions to allow the amended complaint and enter a preliminary injunction blocking enforcement of the eavesdropping statute as applied to audio recording of the kind alleged here.

The Illinois eavesdropping statute restricts a medium of expression commonly used for the preservation and communication of information and ideas, thus triggering First Amendment scrutiny. Illinois has criminalized the nonconsensual recording of most any oral communication, including recordings of public officials doing the public’s business in public and regardless of whether the recording is open or surreptitious.

Defending the broad sweep of this statute, the State’s Attorney relies on the government’s interest in protecting conversational privacy, but that interest is not implicated when police officers are performing their duties in public places and engaging in public communications audible to persons who witness the events. Even under the more lenient intermediate standard of scrutiny applicable to content-neutral burdens on speech, this application of the statute very likely flunks. 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.

With its decision, the Seventh Circuit joins the First Circuit in striking down laws that make it a criminal offense for a member of the public to record a police officer engaged in official business.

Judge Richard Posner, one of the most respected federal appellate jurists in the country, dissented from the Seventh Circuit’s decision.  As I frequently tell my students at UCONN Law School, all legal rules, including constitutional ones, represent a balance between competing social values.  Posner pointed out the social values on both sides of the constitutional equation in this type of case and questioned the majority’s decision for failing to give greater weight to the values favoring a ban on recording police activities:

Accuracy is a social value, and a recording of a conversation 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 eavesdropping.

At the end of the day, I think the majority has the better of the argument.  But Posner’s arguments are always worth serious consideration.

For more on the Alvarez and similar cases, click here, here and here.  For an interesting website (by a Connecticut law student) focused on the general issue of recording police activities, click here.

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