CHICAGO – The U.S. Supreme Court on Monday delivered another blow to a 50-year-old anti-eavesdropping law in Illinois, choosing to let stand a lower court finding that key parts of the hotly debated law run counter to constitutional protections of free speech.
In that critical lower-court ruling in May, the 7th U.S. Circuit Court of Appeals found that the law – one of the toughest of its kind in the country – violates the First Amendment when used against those who record police officers doing their jobs in public.
Civil libertarians say the ability to record helps guard against police abuse. The law’s proponents, however, say it protects the privacy rights of officers and civilians, as well as ensures that those wielding recording devices don’t interfere with urgent police work.
The Illinois Eavesdropping Act, enacted in 1961, makes it a felony for someone to produce an audio recording of a conversation unless all the parties involved agree. It sets a maximum punishment of 15 years in prison if a law enforcement officer is recorded.
As it drew the ire of civil liberties groups, state legislators endeavored to soften the law earlier this year, but those efforts stalled. The high-court’s decision could prompt a renewed push to overhaul it.
But state Rep. Elaine Nekritz, a vocal opponent of the law, said court decisions hitting at its constitutionality could effectively nullify the most contentious aspects of the law and make further legislative action unnecessary.
“If it’s unenforceable, it’s unenforceable,” the Northbrook Democrat said. “I think [the law’s opponents] would be pretty happy with that” and wouldn’t feel the need to formally strike it from the books.
The Washington, D.C.-based high court didn’t hear arguments or issue an opinion, but its decision to do nothing amounts to a rejection of a plea from Cook County State’s Attorney Anita Alvarez to overturn the decision by the 7th Circuit in Chicago.
In their 33-page petition to the Supreme Court, prosecutors argued the 7th Circuit had ignored privacy rights and created “a novel and unprecedented First Amendment protection to ubiquitous recording devices.”
“The decision [of the 7th Circuit] diminished the conversational privacy of speakers in favor of a heretofore unrecognized First Amendment right to audio record the discussions of such speakers,” the petition said.
Especially in an era where recording devices can pick up conversations from far away, a lack of restraints could make civilians uneasy and make them reluctant to speak frankly to officers about criminal activity – endangering the public, the petition argued.
What the prosecutor’s office sought most was “legal clarification and guidance,” a spokeswoman for Alvarez, Sally Daly said on Monday. She said it was disappointing the high court didn’t agree to hear the case.
It stems from a 2010 lawsuit by the American Civil Liberties Union seeking to block Alvarez from prosecuting ACLU staff for recording police officers performing duties in public – one of the group’s long-standing monitoring missions.
The ACLU of Illinois on Monday welcomed the high court’s decision not to touch the lower court’s ruling.
“We are hopeful that we are moving closer to a day when no one in Illinois will risk prosecution when they audio record public officials performing their duties,” Harvey Grossman, legal director of the ACLU of Illinois, said in a statement. “Empowering individuals and organizations in this fashion will ensure additional transparency and oversight of public officials across the state.”
The case now gets kicked back to a U.S. District Court in Chicago, where the ACLU will ask a federal judge to make a temporary injunction against the law permanent. If a judge agrees, that could amount to a final death knell for the law as it’s currently written.