US Court of Appeals for the 7th Circuit grants injunction against 1994 Illinois eavesdropping law

In 1994 the Illinois legislature amended their eavesdropping statute so that it applies to “any oral communication between two or more people regardless of whether one or more of the parties intended their communication to be of a private nature under circumstances justifying that expectation.” (Ill. Pub. Act 88-677 (1994) (codified at 720 Ill. Comp. Stat. 5/14-1(d)))

The law was intended to circumvent an Illinois State Supreme Court decision (People v. Herrington, 645 N.E. 2d 957 (1994) which held that “there can be no expectation of privacy by the declarant where the individual recording the conversation is a party to that conversation.”

Since then, the ACLU in their suit, “American Civil Liberties Union of Illinois v. Anita Alvarez has been seeking to have the scope of the law narrowed.

The ACLU had intended to implement a “program of promoting police accountability by openly making audio and audio/visual recordings of police officers without their consent when: “(1) the officers are performing their public duties; (2) the officers are in public places; (3) the officers are speaking at a volume audible to the unassisted human ear; and (4) the manner of recording is otherwise lawful.”

The 1994 Illinois law on “eavesdropping” clearly prohibited audio recordings of police officers performing their job in public without their expressed permission, and made the ACLU program detailed above, illegal.

Earlier this month, the United States Court of Appeals for the Seventh Circuit granted a preliminary injunction, blocking enforcement of the 1994 Illinois Eavesdropping statute, as it applies to audio and audio/visual recording of police performing “their duties in public places and engaging in public communications audible to persons who witness the events.”

According to 7th Circuit opinion, the Illinois eavesdropping statute restricts far more speech than necessary to protect legitimate privacy interests. As applied to the alleged facts, it likely violates the First Amendment’s free speech and free-press guarantees.

The three judge panel found in this case found that “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.”

Fortunately, the court recognized that “the Illinois eavesdropping statute obliterates the distinction between private and nonprivate by criminalizing all nonconsensual audio recording regardless of whether the communication is private in any sense.”

In the current war against photographers, videographers, journalists, and plain ordinary US citizens, to prevent them from monitoring the government, and the police in particular, and hold them accountable for their actions, through recording their actions and words with audio and audio/visual means, state and local governments in particular are passing laws and interpreting laws, in my opinion, and that of legal experts, in violation of US citizen Constitutionally protected rights.

Recently, in Philadelphia, for example, in direct violation of Philadelphia Police policy, Temple University photojournalism student Ian Van Kuyk was arrested outside his residence while taking pictures of uniformed Philadelphia police performing a routine traffic stop. Even though Mr. Van Kuyk apparently violated no law, while exercising his Constitution rights, and though the Philadelphia Police officers involved violated their own departmental policy, he is still be prosecuted by the Philadelphia District Attorney on charges which, seem clear to me and to many others, as being baseless.

Unfortunately, arrests like the one in Philadelphia, and passage of draconian laws in clear violation of Constitutionally protected rights, such as in Illinois, intended to prevent governmental accountability are commonplace today.

Fortunately, there are some justices left in the court system who actually understand and stand by the Bill of Rights of the US Constitution, and have an understanding, in the words of President Abraham Lincoln, that the governments of the US “are of the people, by the people, for the people.” The government is supposed to serve us, not the other way around.

As a photographer, journalist, photojournalist, and citizen I call on all Americans to hold their governments accountable and halt this war on photographers, videographers, and just plain ordinary citizens.