His Honor Richard A. Posner is not known for his friendly treatment of folks whose arguments he doesn’t agree with. So when an attorney for the American Civil Liberties Union (ACLU) started to make his opening statement at an oral argument, Posner cut him off at the knees after only 14 words! His Honor boomed, “Yeah, I know,” in a dismissive tone. “But I’m not interested, really, in what you want to do with these recordings of peoples’ encounters with the police.”
On trial this day was the topic of the constitutionality of an unusually strict Illinois wiretapping law, which makes it illegal to record someone without his consent even if the recording is done openly and in a public place. Here the ACLU was asking a panel of three judges from the US Court of Appeals for the Seventh Circuit to strike down the law on First Amendment grounds.
Yet the Judge wasn’t having it this day saying “Once all this stuff can be recorded, there’s going to be a lot more of this snooping around by reporters and bloggers,” he said.
His honor was particularly worried that allowing recording would impact police work. “I’m always suspicious when the civil liberties people start telling the police how to do their business,” he shared. His retort was in the form of speculation that gangs would love the ACLU’s argument because recordings would make it easier to discover and retaliate against informants.
Yet Posner in the end may find himself on the losing side of the argument as both fellow Seventh Circuit judges seemed more receptive to the ACLU’s argument. As they reserved most of their fire for the government’s attorney saying the “The statute criminalizes any audiotaping without regard to expectations of privacy, even if those events that are being audiotaped occur in the open, in public, for anyone to see and hear and otherwise observe,” one of the judges stated as “It’s extremely broad.”
Yet the governments lawyer with a straight face, argued that limiting recording actually protected speakers’ First Amendment rights by allowing them to control who heard their speech. However he is paddling up a stream with a broken ore in this case proposing for one to be heard, they must want to be heard.
As just last month, the United States Court of Appeals for the First Circuit handed down a unanimous ruling in the Simon Glik case. Here the case held that Glik had a “clearly-established” First Amendment right to record the actions of the police on the Boston Common, and that police officers should have known this when they arrested him. With this there is hope by the Civil libertarians a second ruling in Illinois will help confirm the idea that audio recording is an activity protected by the First Amendment. Because as it stands today, we are well past 1984…