The US Court of Appeals for the Seventh Circuit [official website] ruled [opinion, PDF] Tuesday that the public videotaping of police at work does not constitute a crime under the Illinois eavesdropping statute. The suit was brought by the American Civil Liberties Union of Illinois (ACLU-IL) [advocacy website] to challenge a 1961 Illinois eavesdropping law on First Amendment [Cornell LII backgrounder] free speech grounds. That law contains provisions that would make the act of videotaping law enforcement in public with both video and sound, a class 1 felony with penalties of up to 15 years in prison. The ACLU brought the lawsuit preemptively due to a credible fear of prosecution stemming from their plans to encourage protest observers to videotape law enforcement efforts to contain and arrest protesters. The three judge panel found that "the State's Attorney has staked out an extreme position" by contending that the recording of the police in a public setting was wholly unprotected by the First Amendment. The court noted that unlike federal and many state wiretapping laws, Illinois swept broadly to ban "all audio recording of any oral communication absent consent of the parties." The panel went on to discuss that making a recording was protected in the same manner by which the later dissemination of that recording is protected. Finally, the court held "that the First Amendment provides at least some degree of protection for gathering news and information, particularly news and information about the affairs of government." The court granted a preliminary injunction prevent such prosecution, and the case will now proceed to the lower courts for a final ruling.
The ACLU heralded [press release] the ruling. An ACLU spokesperson noted,"empowering individuals and organizations in this fashion will ensure additional transparency and oversight of police across the State." The ACLU pointed out that new technologies have made recording and disseminating information much easier and noted the importance of the people's ability to gather information about governmental conduct. It was reported that the ACLU brought the suit in preparation for the upcoming NATO summit [AP report] in Chicago. They anticipate protests and sought to protect their own observers as well as other news gatherers.