American Civil Liberties Union of Ill. v. Alvarez
679 F.3d 583
| 7th Cir. | 2012Background
- Illinois eavesdropping statute criminalizes audio recording of conversations absent consent (720 ILCS 5/14-2(a)(1)); applies to public conversations, including police in public, regardless of privacy expectations.
- ACLU intends to openly audio-record police performing duties in public as part of a “police accountability program” and seeks preenforcement relief; plans to publish recordings.
- ACLU filed suit against Cook County State's Attorney seeking declaratory and injunctive relief; District Court dismissed for lack of standing, later denied leave to amend for First Amendment injury.
- Amended complaint added two individual plaintiffs and more detail about prosecutions under the statute; district court found standing but concluded no cognizable First Amendment injury under Potts v. City of Lafayette.
- Seventh Circuit reversed, holding (a) statute triggers First Amendment scrutiny as a medium-of-expression restriction; (b) ACLU has standing; (c) likelihood of success on merits, with injunction likely, and remand to allow amended complaint and grant preliminary injunction.
- Court remanded with instruction to allow amended complaint and to grant a preliminary injunction blocking enforcement as applied to the described recording.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether ACLU has standing to sue preenforcement | ACLU has credible threat; statute prohibits recording without consent; prosecutions exist | ACLU lacks cognizable First Amendment injury; no will to prosecute implied | ACLU has standing; credible threat of prosecution established |
| Whether First Amendment protects open recording of police in public | Recording is protected speech/press; essential for gathering information about government | Statute broad; burdens privacy; not narrowly tailored | First Amendment protects recording; statute likely fails intermediate scrutiny |
| What standard applies to review of the statute | Strict or intermediate scrutiny; recording as medium implicates core rights | Regulation likely content-neutral; applied to media and public interests | Likely to fail under intermediate scrutiny; stricter review not necessary to decide here |
| Is the eavesdropping statute content-based or neutral? | Enforcement involves content of recording; discriminatoriy against certain speakers | Statute is content-neutral; exemptions for law enforcement/media are limited impact | Statute content-neutral on its face; likely violates under any scrutiny due to broad reach |
| Should the district court have granted preliminary injunction at this stage | Likelihood of success on merits and irreparable harm justify injunction | District court should not grant relief without full merits | Court holds likelihood of success on merits; injunction appropriate and remand ordered |
Key Cases Cited
- Potts v. City of Lafayette, 121 F.3d 1106 (7th Cir. 1997) (right to record public events not guaranteed by the First Amendment; time/place/manner review discussed)
- Branzburg v. Hayes, 408 U.S. 665 (U.S. 1972) (news gathering has First Amendment protection but not an absolute privilege; generally applicable laws may burden press)
- Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748 (U.S. 1976) (reciprocal right to receive speech; not applies as derivative here but informs reception of speech)
- Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011) (right to videotape police in public; substantial First Amendment protection for recording police activity)
- City of Ladue v. Gilleo, 512 U.S. 43 (U.S. 1994) (cannot suppress whole medium of expression; regulation of a medium triggers First Amendment scrutiny)