Having never been to the United States District Court for the Northern District of Illinois, it’s hard to say whether it was a sound decision for the ACLU to make a stand there rather than a district where they might find a stronger sense of constitutional protection.  I suppose they felt they had no choice, since their action was to challenge a law proscribing the recording of police, Illinois Eavesdropping Act, 720 ILCS 5/14. 

So they did it, and  now we’ve got a decision by Judge Suzanne B. Conlon that isn’t going to make life any easier or people inclined to record police any safer.  Why, you ask?  Well, here’s what Judge Conlon had to say in ACLU v. Alvarez (N.D. Jan. 10, 2011) :

The ACLU has not alleged a cognizable First Amendment injury. The ACLU cites neither Supreme Court nor Seventh Circuit authority that the First Amendment includes a right to audio record. Cf. Potts v. City of Lafayette, Indiana, 121 F.3d 1106, 1111 (7th Cir.1997) (“there is nothing in the Constitution which guarantees the right to record a public event” ’).

The State’s Attorney argues that a “willing speaker” must exist to implicate the First Amendment’s right to free speech, Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 756 (1976)…. The ACLU intends to audio record police officers speaking with one another or police officers speaking with civilians. The ACLU’s program only implicates conversations with police officers. The ACLU does not intend to seek the consent of either police officers or civilians interacting with police officers. Police officers and civilians may be willing speakers with one another, but the ACLU does not allege this willingness of the speakers extends to the ACLU, an independent third party audio recording conversations without the consent of the participants. The ACLU has not met its burden of showing standing to assert a First Amendment right or injury….

In other words, there is no First Amendment right to record cops in public because no court has yet held such a right to exist.

The problem here, if you will, is the presumption upon which the decision is based is that we possess no rights unless and until a court somewhere says so. 

Notably, the decision was not grounded in the contention that police officers, or those with whom they publicly interact, possess a right of privacy that justifies protection from the peering eyes of the camera and ears of the microphone.  That would have made for a more interesting decision of competing rights and interests, but that’s not the basis for the decision.  The basis is that there is no decision granting the right to hear and see what cops are doing in public.

Caveat: Before anyone starts screaming Ninth Amendment (“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”), it was a goof written after a night of drunken debauchery to make Ben Franklin feel better after they shaved the top of his head. What? You thought he chose that hairstyle?

The gathering of information about the conduct of public officials in the performance of their duties would appear clearly within the news gathering function of the First Amendment.  Whether it’s the “mainstream media,” the ACLU or some regular Joe doing the recording should in no way preclude the underlying purpose of gathering information.  After all, it’s news worthiness isn’t clear until the “performance” occurs. 

If it turns out to be worthy of reporting, or public dissemination for any reason under the sun, then the failure to record it renders it impossible to subsequently publish.  You can’t watch the action and, should it turn out to be the sort of thing that really should have been recorded, ask them to do it again so you can get it the second time. 

Even if there was a countervailing interest, such as the privacy rights of police or the state’s desire to keep misconduct from the public eye, there is no argument that they would trump the fundamental right of a free press, capable of publishing wrongdoing on the part of the government.  Yet no strict scrutiny analysis was needed here, since Judge Conlon found no right to record the cops in any of her law reporters.

Possibly the most significant technological development in criminal law is the pervasiveness of video and audio recording, capturing misconduct, lies, abuse that had before been merely a typical complaint of “criminals” against our brave boys in blue, summarily dismissed by judges as the rantings of an angry, and incredible, miscreant. 

Only because of these videos have the public, the mainstream media and even a couple of judges who are familiar with Youtube become aware of the reality that these things actually happen.  We see the baseless beatings, tasings, shooting.  We see that police sometimes lie, fabricate complete and total shams to both nail those who fail to respect their authoritah as well as excuse their horrendous wrongdoing.  We learn that these claims of abuse and misconduct are very much real, and can’t be “explained” as demanded why a hero cop would do such a thing.  They happen. We see it happen. We know if happens.

The reason we now know, with absolute certainty, that these things happen is that every person with a video camera has the ability to publish their content for the world to see.  We are all a free press.  The First Amendment to the Constitution protects us in doing so.  That no court has as yet put into precise language our right to exercise this right has no bearing on its existence. 

That one court in the Northern District of Illinois thinks we have no right unless and until some court says so is very wrong.