Am. Civil Liberties Union of Ill. v. Alvarez, No. 11–1286.

• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)
• Writing for the Court: SYKES
• Citation: 679 F.3d 583,40 Media L. Rep. 1721
• Parties: AMERICAN CIVIL LIBERTIES UNION OF ILLINOIS, Plaintiff–Appellant, v. Anita ALVAREZ, Defendant–Appellee.
• Docket Number: No. 11–1286.
• Decision Date: 08 May 2012

679 F.3d 583
40 Media L. Rep. 1721

AMERICAN CIVIL LIBERTIES UNION OF ILLINOIS, Plaintiff–Appellant,
v.
Anita ALVAREZ, Defendant–Appellee.

No. 11–1286.

United States Court of Appeals,
Seventh Circuit.

Argued Sept. 13, 2011.
Decided May 8, 2012.

Validity Called into Doubt

S.H.A. 720 ILCS 5/14–2(a)(1)

[679 F.3d 585]

Richard J. O'Brien (argued), Attorney, Sidley Austin LLP, Chicago, IL, for Plaintiff–Appellant.

James C. Pullos (argued), Paul A. Castiglione, Attorneys, Office of the Cook County States Attorney, Chicago, IL, for Defendant–Appellee.

[679 F.3d 586]

Lucy A. Dalglish, Attorney, Reporters Committee for Freedom of the Press, Arlington, VA, for Amicus Curiae.

Before POSNER, SYKES, and HAMILTON, Circuit Judges.

SYKES, Circuit Judge.

The Illinois eavesdropping statute makes it a felony to audio record “all or any part of any conversation” unless all parties to the conversation give their consent. 720 Ill. Comp. Stat.. 5/14–2(a)(1). The statute covers any oral communication regardless of whether the communication was intended to be private. Id. 5/14–1(d). The offense is normally a class 4 felony but is elevated to a class 1 felony—with a possible prison term of four to fifteen years—if one of the recorded individuals is performing duties as a law-enforcement officer. Id. 5/14–4(b). Illinois does not prohibit taking silent video of police officers performing their duties in public; turning on a microphone, however, triggers class 1 felony punishment.

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. More specifically, the American Civil Liberties Union of Illinois (“ACLU”) challenges the statute as applied to the organization's Chicago-area “police accountability program,” which includes a plan to openly make audiovisual recordings of police officers performing their duties in public places and speaking at a volume audible to bystanders. Concerned that its videographers would be prosecuted under the eavesdropping statute, the ACLU has not yet implemented the program. Instead, it filed this preenforcement action against Anita Alvarez, the Cook County State's Attorney, asking for declaratory and injunctive relief barring her from enforcing the statute on these facts. The ACLU moved for a preliminary injunction.

Faced with so obvious a test case, the district court proceeded with some skepticism. The judge dismissed the complaint for lack of standing, holding that the ACLU had not sufficiently alleged a threat of prosecution. The ACLU tried again, submitting a new complaint addressing the court's concerns. This time, the judge held that the ACLU had cured the original defect but had “not alleged a cognizable First Amendment injury” because the First Amendment does not protect a “right to audio record.” The judge denied leave to amend. The ACLU appealed.

We reverse and remand with instructions 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. 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. Even under the more lenient intermediate standard of scrutiny applicable to content-neutral burdens on speech, this application of the statute very likely flunks. The Illinois eavesdropping statute restricts far more speech than necessary to protect legitimate privacy interests; as

[679 F.3d 587]

applied to the facts alleged here, it likely violates the First Amendment's free-speech and free-press guarantees.

I. Background A. The Illinois Eavesdropping Law

In 1961 the Illinois General Assembly enacted a law making it a crime to use “an eavesdropping device to hear or record all or part of any oral conversation without the consent of any party thereto.” 1961 Ill. Laws 1983. The statute defines “eavesdropping device” as “any device capable of being used to hear or record oral conversation.” Id. (codified at 720 Ill. Comp. Stat.. 5/14–1(a)); see also Celia Guzaldo Gamrath, A Lawyer's Guide to Eavesdropping in Illinois, 87 ILL. B.J. 362, 363 (1999) (discussing the history of the Illinois eavesdropping law). The legislature later amended the law to require the consent of “all of the parties” to the conversation. Ill. Pub. Act 79–1159 (1976) (codified at 720 Ill. Comp. Stat.. 5/14–2(a)(1)).

In People v. Beardsley, 115 Ill.2d 47, 104 Ill.Dec. 789, 503 N.E.2d 346, 349–50 (1986), the Illinois Supreme Court adopted a narrow interpretation of the eavesdropping statute, declaring that audio recordings were prohibited only if the circumstances “entitle [the conversing parties] to believe that the conversation is private and cannot be heard by others who are acting in a lawful manner.” In other words, recording a conversation was punishable under the eavesdropping statute only if the conversing parties had an “expectation of privacy,” though the court remarked that the expectations of privacy protected under the statute were not necessarily “coextensive with those imposed on governmental action by the fourth amendment.” Id., 104 Ill.Dec. 789, 503 N.E.2d at 351.

Eight years later the state supreme court reaffirmed its Beardsley decision in People v. Herrington, 163 Ill.2d 507, 206 Ill.Dec. 705, 645 N.E.2d 957 (1994). The court held that “there can be no expectation of privacy by the declarant where the individual recording the conversation is a party to that conversation.” Id., 206 Ill.Dec. 705, 645 N.E.2d at 958. Chief Justice Bilandic dissented, arguing that normal privacy expectations include an assumption that most conversations are not being recorded. Id., 206 Ill.Dec. 705, 645 N.E.2d at 959–60 (Bilandic, C.J., dissenting). He also distinguished Beardsley because the parties to the conversation in that case “knew that the defendant had the tape recorder” and therefore “gave their implied consent to the recording of their conversation.” Id., 206 Ill.Dec. 705, 645 N.E.2d at 960. The defendant in Herrington, by contrast, recorded a conversation surreptitiously.

In 1994 the Illinois legislature amended the eavesdropping statute so that it applies to “any oral communication between 2 or more persons regardless of whether one or more of the parties intended their communication to be of a private nature under circumstances justifying that expectation.” Ill. Pub. Act 88–677 (1994) (codified at 720 Ill. Comp. Stat.. 5/14–1(d)). This amendment effectively overrode the Beardsley and Herrington decisions. As later interpreted by the Illinois Supreme Court, under the amended statute a party's consent may be “inferred from the surrounding circumstances indicating that the party knowingly agreed to the surveillance.” People v. Ceja, 204 Ill.2d 332, 273 Ill.Dec. 796, 789 N.E.2d 1228, 1241 (2003). However, express disapproval defeats any inference of consent. Plock v. Bd. of Educ. of Freeport Sch. Dist. No. 145, 396 Ill.App.3d 960, 336 Ill.Dec. 497, 920 N.E.2d 1087, 1095 (2009).

The eavesdropping statute exempts recordings made by law-enforcement officers

[679 F.3d 588]

for law-enforcement purposes; officers have substantial discretion to record a wide variety of police-civilian encounters without the subject's consent. 720 Ill. Comp. Stat.. 5/14–3(h). These include any “enforcement stop,” a broadly defined term that includes “traffic stops,” “motorist assists,” “pedestrian stops,” and “requests for identification.” Id. Surreptitious law-enforcement intercepts for investigative purposes are governed by different subsections of the statute. See id. 5/14–3(g), (g–5), (g–6). The eavesdropping statute also contains an exemption for the media, at least in some circumstances; it exempts any recording made for “broadcast by radio, television, or otherwise” for live or “later broadcasts of any function where the public is in attendance and the conversations are overheard incidental to the main purpose for which such broadcasts are then being made.” Id. 5/14–3(c).

B. The ACLU's First Amendment Challenge

The ACLU filed this suit against Alvarez in her official capacity seeking declaratory and injunctive relief under 42 U.S.C. § 1983 barring her from enforcing the eavesdropping statute against audio recording that the organization plans to carry out in connection with its “police accountability program.” More specifically, the ACLU intends to implement a “program of promoting police accountability by openly audio recording police officers without their consent when: (1) the officers are performing their public duties; (2) the officers are in public places; (3) the officers are speaking at a volume audible to the unassisted human ear; and (4) the manner of recording is otherwise lawful.” The program will include, among other things, audiovisual recording of policing at “expressive activity” events—protests and demonstrations—in public fora in and around the Chicago area. The organization also plans to make audiovisual recordings of policing at “expressive activities” carried out by its members. The ACLU intends to publish these recordings online and through other forms of electronic media.

The ACLU alleged that its planned audiovisual recording is protected under the First Amendment's speech, press, and...