The Corner

Supreme Court Denies Cert in Illinois Case

More often than not, the ACLU is totally wrong. Exhibit A: its opposition to voter ID. But the ACLU is firmly on the side of the angels when it comes to transparency of police conduct.

Thus, we should applaud the Supreme Court, which today declined the chance to review Alvarez v. ACLU of Illinois, a Seventh Circuit case. The Circuit Court had blocked an Illinois statute that makes it a felony to record audio of a police officer’s “performing duties as a law enforcement officer.”

The statute in question, 720 Ill. Comp. Stat. 5/14-2(a)(1), forbade recording a conversation without the consent of all parties — regardless of whether the conversation was private or public. In an odd twist, since it only prohibits audio recordings, you aren’t violating the law if you make a silent video of a police officer making a public arrest. But if you add audio to the recording, you face four to fifteen years in jail!

The law was passed in 1961 to prevent unauthorized wiretapping. But as the Seventh Circuit said, Illinois “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.”

The idea that recording a police officer making an arrest in public should subject an individual to jail time is obnoxious and a fundamental violation of basic First Amendment rights. According to the Seventh Circuit, the Illinois law “restricts a medium of expression commonly used for the preservation and communication of information and ideas, thus triggering First Amendment” protection. Illinois’s law is also bad public policy, since it limits transparency of the conduct of public officials. Such transparency is desperately needed in Illinois, with its long history of public corruption.

The ACLU was right to challenge this law, and the Seventh Circuit was right to enjoin the statute, and the Supreme Court was right to deny certiorari of the lower court’s decision. Illinois should never have put this law on the books, and it should not have pursued this case all the way to the Supreme Court.