Appeals Court Blocks Illinois’ “Broadest of Its Kind” Law Banning Recording of Police

A federal appeals court Tuesday blocked an Illinois law that made it a felony to record police officers performing their duties in public, saying the broadly worded statute likely violates the First Amendment.

The U.S. Court of Appeals for the 7th Circuit issued the preliminary injunction in a lawsuit brought by the American Civil Liberties Union, which has plans to record police activities during protests in the Chicago area. Fearing arrest, the ACLU put those plans on hold, and filed suit.

Illinois officials argued that the law was necessary to protect the privacy rights of police officers and those they are speaking to. But in a 2-1 decision, the court ruled that the law’s broad reach — making it illegal to record any conversation without consent, regardless of whether the parties have any expectation of privacy — went too far.

“The expansive reach of this statute is hard to reconcile with basic speech and press freedoms,” the panel wrote. “The Illinois eavesdropping statute restricts far more speech than necessary to protect legitimate privacy interests; as applied to the facts alleged here,  it  likely violates  the  First  Amendment’s free-speech and free-press guarantees.”

Under Illinois law, eavesdropping is a Class 4 felony. But it is elevated to a Class 1 felony — with a maximum penalty of 14 years in prison – for anyone recording police officers, even if they are within earshot and the recording is not surreptitious. The law applies only to audio recording. Taking pictures or recording silent video is not illegal;  but turning on a microphone criminalizes the act.

Last month, the Connecticut Senate gave its support to a bill that would make police officers subject to civil litigation for interfering with a person recording the officer or a colleague performing police duties.