Judge Richard A. Posner isn’t known for his genteel treatment of parties whose arguments he doesn’t agree with. When an attorney for the American Civil Liberties Union began to make his opening statement at a Tuesday oral argument, Posner cut him off after 14 words. “Yeah, I know,” he said dismissively. “But I’m not interested, really, in what you want to do with these recordings of peoples’ encounters with the police.”
The topic was the constitutionality of the unusually strict Illinois wiretapping law, which makes it illegal to record someone without his consent even if the recording is done openly and in a public place. The ACLU was asking a panel of three judges from the US Court of Appeals for the Seventh Circuit to strike down the law on First Amendment grounds.
But Judge Posner wasn’t having it. “Once all this stuff can be recorded, there’s going to be a lot more of this snooping around by reporters and bloggers,” he said.
He was particularly worried that allowing recording would impact police work. “I’m always suspicious when the civil liberties people start telling the police how to do their business,” he said. He speculated that gangs would love the ACLU’s argument because recordings would make it easier to discover and retaliate against informants.
Posner may find himself on the losing side of the argument. Both of Posner’s fellow Seventh Circuit judges seemed more receptive to the ACLU’s argument. They reserved most of their fire for the government’s attorney. “The statute criminalizes any audiotaping without regard to expectations of privacy, even if those events that are being audiotaped occur in the open, in public, for anyone to see and hear and otherwise observe,” one of the judges said. “It’s extremely broad.”
The government lawyer gamely argued that limiting recording actually protected speakers’ First Amendment rights by allowing them to control who heard their speech. But he may be swimming against the tide.
Last month, the United States Court of Appeals for the First Circuit handed down a unanimous ruling in the Simon Glik case. That case held that Glik had a “clearly-established” First Amendment right to record the actions of the police on the Boston Common, and that police officers should have known this when they arrested him. Civil libertarians are hoping a second ruling in Illinois will help cement the principle that audio recording is an activity protected by the First Amendment.