Within the past six months, two state court judges have declared the Illinois eavesdropping law unconstitutional. Now the Federal Circuit Court of Appeals in Chicago has weighed in saying the law likely violates the First Amendment. There is timely significance to that decision with the NATO summit fast approaching.
The American Civil Liberties Union plans on having trained volunteers monitor NATO summit protests -- specifically, how police react to them. Monitoring means you record video and audio of a camera or smartphone. The Illinois eavesdropping law allows video aping an officer, but if you record the officer's voice -- without his or her permission -- it is a felony.
The ACLU went before the appeals court last fall to challenge that law, and Tuesday it won. The appeals court on a 2-1 vote said "the Illinois Eavesdropping statute restricts far more speech than necessary to protect privacy interests..." and "...It likely violates the First Amendment's free speech and free press guarantees."
"We're very pleased with the decision today, and we hope it signals the end to what is a fairly bizarre law in Illinois. It is the outlier nationally," said the ACLU's Harvey Grossman.
The appeals court decision is tailored to the ACLU's volunteers, but in reality it goes way beyond them, and it represents another setback for a law increasingly unpopular and difficult to enforce in a world of omnipresent smartphones.
"Most people, I think, when they're told it's illegal to record a police officer's voice when he's on the public way performing a public function, they're appalled when they find that's illegal," said attorney Torri Hamilton.
When the NATO summit begins, many intend to record audio and video and stream it live. Police have already said they won't try to enforce the eavesdropping law. An injunction ordered by the appeals court says they legally must not try.
Tuesday's was a federal appeals court decision. The similar decisions by two different state court judges -- including one in Chicago -- will eventually go before the state supreme court.
In the interim, this ruling suggests that while the Illinois eavesdropping law is still on the books, police will be less inclined to arrest someone who openly audio records an officer doing his job on the public way in conversation that could be heard by those standing within earshot.