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Decision of Seventh Circuit US Court of Appeals in American Civil Liberties Union of Illinois vs. Anita Alvarez

Decision of Seventh Circuit US Court of Appeals in American Civil Liberties Union of Illinois vs. Anita Alvarez

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Published by Gapers Block
Full ruling of the United States Court of Appeals for the Seventh Circuit in the case of American Civil Liberties Union of Illinois vs. Anita Alvarez, decided May 8, 2012.
Full ruling of the United States Court of Appeals for the Seventh Circuit in the case of American Civil Liberties Union of Illinois vs. Anita Alvarez, decided May 8, 2012.

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Published by: Gapers Block on May 09, 2012
Copyright:Public Domain

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05/09/2012

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In the
United States Court of Appeals
 For the Seventh Circuit
 
No. 11-1286A
MERICAN
C
IVIL
L
IBERTIES
U
NION OF
I
LLINOIS
 ,
Plaintiff-Appellant,v.
A
NITA
A
LVAREZ
 ,
Defendant-Appellee.
 
Appeal from the United States District Courtfor the Northern District of Illinois, Eastern Division.No. 10 C 5235
 — 
Suzanne B. Conlon
 ,
 Judge
.
 
A
RGUED
S
EPTEMBER
13,
 
2011
 — 
D
ECIDED
M
AY
8,
 
2012
Before P
OSNER
 ,
 
S
YKES
 ,
 
and
 
H
AMILTON
 ,
Circuit Judges
.S
YKES
 ,
Circuit Judge
. The Illinois eavesdropping statutemakes it a felony to audio record “all or any part ofany conversation” unless all parties to the conversationgive their consent. 720 I
LL
.
 
C
OMP
.
 
S
TAT
.
 
5/14-2(a)(1). Thestatute covers any oral communication regardless ofwhether the communication was intended to be private.
Id.
5/14-1(d). The offense is normally a class 4 felony butis elevated to a class 1 felony
 — 
with a possible prison
Case: 11-1286 Document: 45 Filed: 05/08/2012 Pages: 66
 
2No. 11-1286term of four to fifteen years
 — 
if one of the recorded indi-viduals is performing duties as a law-enforcement officer.
Id.
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
 
No. 11-12863that the ACLU had cured the original defect but had “notalleged a cognizable First Amendment injury” becausethe First Amendment does not protect a “right to audiorecord.” The judge denied leave to amend. The ACLUappealed.We reverse and remand with instructions to allowthe amended complaint and enter a preliminary injunc-tion blocking enforcement of the eavesdropping statuteas applied to audio recording of the kind alleged here.The Illinois eavesdropping statute restricts a mediumof expression commonly used for the preservation andcommunication of information and ideas, thus trig-gering First Amendment scrutiny. Illinois has criminalizedthe nonconsensual recording of most any oral communica-tion, including recordings of public officials doing thepublic’s business in public and regardless of whetherthe recording is open or surreptitious. Defending the broad sweep of this statute, the State’s Attorney relies onthe government’s interest in protecting conversationalprivacy, but that interest is not implicated when policeofficers are performing their duties in public places andengaging in public communications audible to personswho witness the events. Even under the more lenientintermediate standard of scrutiny applicable to content-neutral burdens on speech, this application of the statutevery likely flunks. The Illinois eavesdropping statuterestricts far more speech than necessary to protect legiti-mate privacy interests; as applied to the facts allegedhere, it likely violates the First Amendment’s free-speech and free-press guarantees.
Case: 11-1286 Document: 45 Filed: 05/08/2012 Pages: 66

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