Jackson Jambalaya

Recording a police officer with a cellphone became easier after the Supreme Court let stand a 2011 Seventh Circuit Court of Appeals ruling that affirmed the right of citizens to record police officers performing their duties in public. (No. 12-318) The Court denied certiori to an appeal by the State of Illinois on November 26.* The Seventh Circuit decision overturned a fifty-year old Illinois statute making it a crime to record “all or any part of any conversation” without the consent of all parties. The ACLU filed suit after it announced it was going to start recording police officers while in the performance of their duties.


The law enhanced the offense from a class 4 to a class 1 felony if a police officer was recorded. The increased penalties meant one could earn a prison term of fifteen years or less upon conviction. The law applied only to audio recording. Video taping was allowed as long as no sound was recorded. An impossibility if one is recording with a standard smartphone or cheap video camera. The Seventh Circuit framed the issue as a First Amendment question:

"The question here is whether the First Amendment prevents Illinois prosecutors from enforcing the eavesdropping statute against people who openly record police officers performing their official duties in public."

The District Court ruled the First Amendment did not apply to the law. However, the Seventh Circuit reversed the decision and ordered the district court

"to allow the amended complaint and enter a preliminary injunction blocking enforcement of the eavesdropping statute as applied to audio recording of the kind alleged here. 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."

The Court said the law was so broadly written, recording public meetings such as city councils or school boards was made illegal. Thus the freedom of the press is implicated, hence the First Amendment issue:

"Defending the broad sweep of this statute, 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. ...... it likely violates the First Amendment’s free speech and free-press guarantees"

The Seventh Circuit made it clear the law would have stood if it applied to private conversations. However, the law covered all public conversations and statements. The statute could apply to most news broadcasts if someone filed a complaint. Just to make sure Illinois got the point about the First Amendment, the opinion declared:

"Audio and audiovisual recording are communication technologies, and as such, they enable speech. Criminalizing all non-consensual audio recording necessarily limits the information that might later be published or broadcast— whether to the general public or to a single family member or friend— and thus burdens First Amendment rights... Audio recording is entitled to First Amendment protection."

However, the jurisprudence protecting the right of citizens to videotape the police in public do not stop in the Seventh Circuit. The First Circuit Court of Appeals also ruled against the police in 2011 in Glik v. City of Boston.** Attorney Simon Glik recorded several police officers arresting a suspect with his cellphone (More details of the incident are provided on p. 3 of the opinion posted below.). The police ordered him to stop recording the arrest. The police arrested Mr. Glik for allegedly violating the state's wiretap statutes. Mr. Glik filed a Section 1983 suit against the police officers and the city, alleging they violated his constitutional rights after an internal affairs complaint yielded no results. The First Circuit ruled his First Amendment rights were violated as he was arrested "without probable cause". Indeed the First Circuit asked

"is there a constitutionally protected right to videotape police carrying out their duties in public?"

The court answered YES:

"Basic First Amendment principles, along with case law from this and other circuits, answer that question unambiguously in the affirmative. It is firmly established that the First Amendment's aegis extends further than the text's proscription on laws "abridging the freedom of speech, or of the press," and encompasses a range of conduct related to the gathering and dissemination of information."

The court also said it made no difference if the person making the recording was a journalist or a citizen:

"The First Amendment right to gather news is, as the Court has often noted, not one that inures solely to the benefit of the news media; rather, the public's right of access to information is coextensive with that of the press.."

Moreover, changes in technology and society have made the lines between private citizen and journalist exceedingly difficult to draw. The proliferation of electronic devices with video-recording capability means that many of our images of current events come from bystanders with a ready cell phone or digital camera rather than a traditional film crew, and news stories are now just as likely to be broken by a blogger at her computer as a reporter at a major newspaper. Such developments make clear why the news-gathering protections of the First Amendment cannot turn on professional credentials or status."

Given two circuits have ruled against the police and the Supreme Court let stand one of those rulings, it is going to be harder for the police to prosecute citizens who use their cellphones to record them in public. Wiretapping and privacy laws still apply to private conversations and communications. However, the police are going to find it tougher to arrest someone for "disorderly conduct" when an officer tells someone to turn off his cellphone camera just because he doesn't like it.

*ACLU v. Anita Alvarez, No. 11-286 in Pacer. Appeal from the United States District Court for the Northern District of Illinois, Eastern Division.
No. 10 C 5235—Suzanne B. Conlon, Judge.

**Glick v. City of Boston No. 10-1764 in Pacer. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS.