2No. 11-1286term of four to fifteen years
if one of the recorded indi-viduals is performing duties as a law-enforcement officer.
5/14-4(b). Illinois does not prohibit taking silent videoof police officers performing their duties in public;turning on a microphone, however, triggers class 1 felonypunishment.The question here is whether the First Amendmentprevents Illinois prosecutors from enforcing the eaves-dropping statute against people who openly recordpolice officers performing their official duties in public.More specifically, the American Civil Liberties Unionof Illinois (“ACLU”) challenges the statute as applied tothe organization’s Chicago-area “police accountabilityprogram,” which includes a plan to openly make audio-visual recordings of police officers performing theirduties in public places and speaking at a volume audibleto bystanders. Concerned that its videographers would be prosecuted under the eavesdropping statute, theACLU has not yet implemented the program. Instead,it filed this preenforcement action against Anita Alvarez,the Cook County State’s Attorney, asking for declaratoryand injunctive relief barring her from enforcing thestatute on these facts. The ACLU moved for a prelim-inary injunction.Faced with so obvious a test case, the district courtproceeded with some skepticism. The judge dismissedthe complaint for lack of standing, holding that theACLU had not sufficiently alleged a threat of prosecution.The ACLU tried again, submitting a new complaintaddressing the court’s concerns. This time, the judge held
Case: 11-1286 Document: 45 Filed: 05/08/2012 Pages: 66