Supreme Court Lets Important Right-To-Record-Police Ruling Stand
Yes, yes, I know that it doesn't necessarily mean anything when the Supreme Court denies cert on a case. They might perceive procedural flaws that would prevent a substantive ruling. There might be no conflict among the federal circuits, making the case less urgent. They might think the issue isn't important enough to make the cut this year. You can't infer that they believe that the lower court got it right just because they declined it.
Even so, it's great news that SCOTUS has declined to review the Seventh Circuit's decision in ACLU v. Alvarez, in which the court found that the First Amendment prevented Illinois from enforcing an eavesdropping statute against people who openly record police officers in the course of their duties:
The Illinois eavesdropping statute restricts a medium of expression commonly used for the preservation and communication of information and ideas, thus triggering First Amendment scrutiny. Illinois has 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. Defending the broad sweep of this statute, the State’s Attorney relies on the government’s interest in protecting conversational
privacy, but that interest is not implicated when police officers are performing their duties in public places and engaging in public communications audible to persons who witness the events. Even under the more lenient intermediate standard of scrutiny applicable to content neutral burdens on speech, this application of the statute very likely flunks.
Hopefully this — aided by an administration that seems to have it right on this issue — is the beginning of a solid wall of authority establishing the right of citizens to record public servants — including police — in the course of their duties. Doing so is essential to monitoring the things police do in our name, and often to defending people in the face of law enforcement perjury. But don't expect cops to go down without a fight. They are invested in the idea that they have a right to be free of being recorded in the course of their duties, and will attempt to enforce that sense of entitlement through various contempt-of-cop charges like "resisting arrest," "obstructing a police officer," "disturbing the peace," "failure to disperse," and other amorphous measures that can mean whatever police say they mean.
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