Every time a public figure speaks these days, smartphones are there to record the speech.
A key question: Is this legal?
That was the issue addressed recently by the U.S. Court of Appeals for the Seventh Circuit in American Civil Liberties Union of Illinois v. Alvarez, a May 8 opinion.
The court reviewed a challenge to the Illinois eavesdropping statute that was first adopted and then amended before the invention of smartphones put digital video recorders in everyone’s hands. It makes it a felony to audio record “all or any part of any conversation” unless all parties to the conversation give their consent, and includes any oral communication regardless of whether the communication was intended to be private.
In Chicago, citizens had started a “police accountability program,” which included plans to openly make audiovisual recordings of police officers performing their duties in public places and — a fact that makes the statute applicable — speaking at a volume audible to bystanders. The persons who started or wished to participate in the program feared that they would be subject to prosecution. The ACLU challenged the law on First Amendment grounds on their behalf.
This case raised two separate First Amendment claims: free speech and freedom of the press. The court concluded that the “expansive reach” of the Illinois “statute is hard to reconcile with basic speech and press freedoms.” The court reasoned that audio and audiovisual recording are modes of expression “commonly used for the preservation and dissemination of information and ideas.” As a result, the ability to make an audio or audiovisual recording is “necessarily included within the First Amendment’s guarantee of speech and press rights as a corollary of the right to disseminate the resulting recording.” In other words, the court reasoned, the right to publish or broadcast an audio or audiovisual recording would be meaningless if it did not include the right to make the recording in the first place. The court explained:
By way of a simple analogy, banning photography or note-taking at a public event would raise serious First Amendment concerns; a law of that sort would obviously affect the right to publish the resulting photograph or disseminate a report derived from the notes. The same is true of a ban on audio and audiovisual recording.
The court relied upon the U.S. Supreme Court’s campaign finance decision in Citizens United v. FEC (2010). Citizens United, in this view, stands for the proposition the state may not regulate free speech through prohibiting the creation or dissemination of expressive materials. In the campaign finance cases, for example, the Supreme Court held that the First Amendment protected raising and spending money in support of political speech. This facilitates the resulting political speech. The court, relying on this reasoning, said, “Restricting the use of an audio or audiovisual recording device suppresses speech just as effectively as restricting the dissemination of the resulting recording.”
In regards to the Illinois statute, prohibiting the recording of events in public would unconstitutionally restrict the type of information — including information about public officials performing government functions — that might later be published or broadcast. This not only implicates free speech rights, but free press rights. The ability of news organizations to gather information, particularly news and information about government affairs, would be unconstitutionally restricted by a prohibition on recordings of public events.
The Seventh Circuit opinion is not the first to address this issue. In 2011 the First Circuit, in Glik v. Cunniffe, held that there is a constitutionally protected right to videotape police carrying out their duties in public. The First Circuit said, “Gathering information about government officials in a form that can readily be disseminated to others serves a cardinal First Amendment interest in protecting and promoting the free discussion of governmental affairs.”
The state of Illinois attempted to justify the law on the grounds that the law is necessary to protect conversational privacy. While this is a legitimate governmental purpose, it did not apply in this case because the proposed monitoring of the police was not designed to surreptitiously record otherwise private communications. Instead, the privacy interests are not implicated by people appearing in public places and speaking at a volume audible to bystanders. And, significantly, the state could not identify an interest served by protecting against audio recordings when photographs and silent videos would not be prohibited by the statute.
Based on this decision, it appears that the recording of President Barack Obama by a cell phone when he gives a public speech is protected by the First Amendment free speech and free press guarantees. Laws, like the law in Illinois, that seek to restrict recordings of public officials in public spaces are likely to be found unconstitutional.