On Tuesday, a judge indicated that the American Civil Liberties Union's challenge of the harsh Illinois eavesdropping law banning the audio recording of police officers faces an uphill climb if it is to succeed -- despite the recent high-profile acquittal of an alleged offender.
In court Tuesday, U.S. 7th Circuit Judge Richard Posner said that if the eavesdropping law was weakened, gang members and "snooping" bloggers and reporters would "rejoice" at the news, the Chicago Sun-Times reports.
"If you permit the audio recordings, they’ll be a lot more eavesdropping. … There's going to be a lot of this snooping around by reporters and bloggers," Posner said, as reported by the Sun-Times. "Yes, it’s a bad thing. There is such a thing as privacy."
But Illinois ACLU vows to press on and is seeking a federal injunction that would prevent Cook County States' Attorney Anita Alvarez from prosecuting others -- including ACLU employees -- with violating the law. They say the law, which bans audio recordings of police officers while at the same time allowing for silent video recordings and photographs, violates the First Amendment. If convicted of the law, violators are slapped with a Class 1 felony on their record and a prison sentence of up to 15 years.
"In order to make the rights of free expression and petition effective, individuals and organizations must be able to freely gather and record information about the conduct of government and its agents -- especially the police," Harvey Grossman, legal director of the ACLU of Illinois explained in a statement. "Organizations and individuals should not be threatened with prosecution and jail time simply for monitoring the activities of police in public, having conversations in a public place at normal volume of conversation."
But Harold Krent, the Illinois Institute of Technology's Kent College of Law Dean, told NBC Chicago that both the judge and Alvarez's office's concerns with weakening the law and allowing for audio recording of police officers carry some merit. Krent said the matter should ultimately be left up to the state's General Assembly.
"There's a real danger here that you can't lose sight of," Krent told NBC. "When you send something on YouTube, or you broadcast in some other way that's related to a criminal investigation, that could interfere with that investigation and compromise the goal, the arrest, the prosecution."
In August, Tiawanda Moore, a woman who secretly recorded a conversation with a police investigator who was attempting to dissuade her from filing a sexual harassment complaint against a Chicago police officer, was acquitted by a jury of charges that she violated the eavesdropping law. The jury found that Moore's case met the requirement of an exception to the law allowing for recording if a crime is suspected. One juror described the trial as a "waste of time."
Another individual, Michael Allison, has also been accused of violating Illinois' eavesdropping law after recording suspected police harassment. If Allison is convicted of the five counts of wiretapping he has been charged with, he faces up to 75 years in prison. Allison has no previous arrests on his record. A ruling in his case is expected sometime within the coming weeks.
Two previous challenges of the law, filed in Cook County Circuit Court, have been thrown out. A formal written ruling on the issue is expected to be filed yet this year.
Meanwhile, late last month in Massachusetts, another state with a strict eavesdropping law on the books, a judge at Boston's First Circuit Court of Appeals ruled that videotaping police making an arrest is a First Amendment right.
"The First Amendment issue here is, as the parties frame it, fairly narrow," Judge Kermit Lipez wrote in his decision. "Is there a constitutionally protected right to videotape police carrying out their duties in public? Basic First Amendment principles, along with case law from this and other circuits, answer that question unambiguously in the affirmative."
Photo by bfishadow via Flickr.
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