On Monday, the U.S. Supreme Court rejected an appeal from Cook County state's attorney Anita Alvarez that allows the enforcement of an Illinois law criminalizing the recording of police officers while on duty.
The American Civil Liberties Union of Illinois (ACLU) challenged a district court ruling in 2011, which agreed with the Cook County state's attorney's office that audio recording of the police in public was not a protected First Amendment right. The ACLU challenged the statute as applied to the organization’s Chicago-area “police accountability program,” which:
"includes a plan to openly make audio-visual recordings of police officers performing their duties in public places and speaking at a volume audible to bystanders."
On May 8, 2012, the 7th Circuit U.S. Court of Appeals in Chicago sided with the ACLU, ruling that audio or audiovisual recording of police is indeed constitutionally protected under the First Amendment right to free speech. The majority reasoned:
"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."
Monday's inaction by the high court leaves in place the lower court of appeals ruling, which banned the enforcement of an Illinois anti-eavesdropping statute forbidding the recording of police officers in public.
Under the now (arguably) defunct law, taping law enforcement officers such as the infamous 1991 videotaping of LAPD officers beating Rodney King, a black man that highlighted racial tensions between law enforcement and minorities across the United States was a felony in Illinois that carried up to 15 years in prison.
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