Tuesday, November 27, 2012

Seventh Circuit strikes down Illinois's unconstitutional "eavesdropping" law


The Supreme Court denied cert. in this case, so the decision of the Seventh Circuit stands, and the aspect of the Illinois wiretapping law that criminalizes the recording of police officers in public is unenforceable in Illinois.

ORIGINAL POST (5/8/2012):

In an opinion issued today, the Seventh Circuit Court of Appeals ruled unconstitutional, on First Amendment grounds, the Illinois law that makes it a felony to make audio recordings of police officers in public. Richard Posner (the man, not the kidney) dissented.

Previous coverage here, here, and here.


  1. Having just skimmed Posner's dissent, I guess I have to say this problem is more nuanced or complicated than it might appear. It's not just the Police who are implicated by this ruling, but any person they are talking too, which might include a number of persons who's privacy concerns are legitimate.

  2. I skimmed it too, and I agree he added some nuance. But I was unconvinced, as it struck me as quite manufactured nuance. The idea that this law operates, or was intended to operate, to protect people that cops are talking to was just made up by Posner out of whole cloth. Check out my posts on the terrible arguments three Republicans made in support of this law when the legislature failed to repeal it earlier this year—no mention was made of privacy concerns the people the cops are talking to.


    Moreover, the eavesdropping law already exempts recordings made by police of the people they're talking to during an enforcement stop. So it seems to me that Posner is exaggerating the privacy concerns that the State of Illinois is supposedly extending towards people talking to talks.

  3. I will accept that the law was not intended to protect people the police are talking to. But why does that matter? The fact is that the law has that unintended and potentially valid effect; a happy accident perhaps, but real never the less. It is, I think, perfectly reasonable for a court to consider issues not briefed or even raised in argument if those issues might materially effect the holding. Better that they demand new briefs on the subject, but to ignore an elephant in the room just because counsels briefing the matter overlooked it is, IMHO, foolish. It may be that this concern comes to nothing, but the problem is that we don't really know.

  4. In general I trust the adversary system not to ignore any elephants in the room. My experience is that there's usually a reason that neither team of lawyers thought fit to bring up a certain issue. In fact one of my most painful losses as a lawyer was at the Federal Circuit Court of Appeals, where the panel came up with its own claim construction of a patent, not suggested by the other party, and not even tested at oral argument. The claim construction was nonsense, and led to absurd results, but the panel didn't realize it because (a) they didn't really know all the ins and outs of the patent (only what the lawyers brought to their attention based on the issues actually litigated); and (b) the panel's novel claim construction wasn't tested in the adversary (or legislative process. The point is: judges are very likely to screw up when they come up with their own "brilliant" theories.

    In this case, I think that's unfortunately true. Posner's concern about conversational privacy with police officers has some surface appeal, but upon examination it is almost absurd. Seriously: Who thinks their conversations with police officers are private? (You may have heard a little thing called the Miranda warning, which features the prominently the phrase "anything you say may be used against you in a court of law.")

    The best example Posner can come up with of the harms from this decision is this:

    "Suppose a police detective meets an informant in a and they sit down on a park bench to talk. A crime sidles up, sits down next to them, takes out iPhone, and turns on the recorder. The detective and informant move to the next park bench to continue their conversation in private. The reporter follows them.Is this what the Constitution privileges?"

    Hmm. So the reporter knows who the undercover cop is, and knows who the confidential informant is? It seems to me that something is perhaps wrong with this hypothetical. And perhaps Judge Posner has been watching too much "The Wire."

    There is a deeper problem, I think, with Posner's opinion. It's ultimately based on a rejected view of the first amendment. He makes clear that he thinks the original meeting of the first amendment was solely to ban prior restraint and censorship boards, and that intervening innovations in the first amendment jurisprudence have led us far astray from that. (He points to Citizens United as an example.) He may be right about the original understanding, but he's way on the wrong side of history to argue that we've gone too far with the first amendment. And it's this fuddy-duddy anti-free-speech sentiment that is leading Posner to make up his own theories of the case here.

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  6. SUKANYA is hereby awarded 15 Gillette-Torvik Bucks™!

  7. The illinoiscorruption.net has issued an informational video and a press release, to help the media and the general public in the upcoming oral argument at the Illinois Supreme Court hearing in Annabel Melongo’s eavesdropping case. The hearing is scheduled for January 14th, 2014, at the 18th floor of the Michael A. Bilandic Building, 160 N. LaSalle Street, Chicago at 9.30 am.

    Video: http://www.illinoiscorruption.net/common/video-pressrelease.html
    Press Release: http://www.illinoiscorruption.net/common/pressrelease.html

    Please support this cause. The Illinois Eavesdropping law at its very core creates a two-class legal system wherein the conversations of the powerful and well-connected are protected to the detriment of the less powerful. The upcoming oral argument presents a unique opportunity for the common citizen to re-establish that legal balance that will unequivocally establish a right to record public officials in their public duties.

    Therefore, please contribute to this all-important hearing by either attending it, writing about it, spreading the word or just forwarding the below video and press release to anybody who might be of any help.


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