The First Amendment protects the right to communicate by ensuring that "Congress shall make no law ... abridging the freedom of speech, or of the press." (1) Laws that criminalize eavesdropping restrict the ability to record and share speakers' words in order to preserve their conversational privacy. Recently, in American Civil Liberties Union of Illinois v. Alvarez, (2) a divided Seventh Circuit panel found one such statute to be an unconstitutional suppression of speech as applied to the public speech of police officers. (3) A strongly worded dissent argued that such bans were necessary to protect individual privacy in public places. Although the court addressed a narrow application of the law and did so at the preliminary injunction stage, the judges did not limit their reasoning to the specific facts of the case, but instead suggested broader rules of conversational privacy. This wider gaze may suggest that, in practice, the same determination of privacy will apply to all speech exposed to the public. The court in Alvarez missed an opportunity to adopt a nuanced framework for First Amendment privacy analysis that responds to improved recording technology by recognizing gradations of privacy in public speech.
In Illinois, it is a crime to record any conversation without the consent of all parties, (4) even if the recording occurs openly and the parties have no reasonable expectation of privacy. (5) The Illinois statute is the most stringent in the country. (6) In 2010, the American Civil Liberties Union of Illinois (ACLU) challenged the statute. The ACLU sought to detect and deter police misconduct by openly recording officers performing their official duties in public places. (7) Before implementing this monitoring program, the ACLU sued the Cook County State's Attorney in federal court to enjoin her, both preliminarily and permanently, from prosecuting its members for violations of the law. (8)
Judge Conlon of the Northern District of Illinois dismissed the suit for lack of standing. (9) The court first ruled that the ACLU had insufficiently alleged a threat of prosecution, a deficiency the ACLU cured in an amended complaint. (10) The court then diagnosed another standing problem, finding that no precedent identified a "First Amendment ... right to audio record," and thus that the ACLU had "not alleged a cognizable First Amendment injury." (11)
The Seventh Circuit, in a majority opinion by Judge Sykes, (12) reversed and remanded with an instruction to issue the ACLU's requested preliminary injunction. (13) The majority reversed the district court's standing ruling, finding that the lower court had wrongly understood a prior Seventh Circuit determination that "nothing in the Constitution ... guarantees the right to record a public event" to mean that the Constitution did not protect that right at all. (14) The majority noted that the prior opinion focused on whether the challenged prohibition "constitute[d] a valid time, place, or manner regulation," (15) and thus indicated that bans on recording "implicate free-speech interests." (16) These interests provided the ACLU with standing to bring its claim.
Turning to the merits of the ACLU's First Amendment claim, Judge Sykes identified audio recordings as expressive media, the legal restriction of which has "obvious effects on speech and press rights." (17) Analogizing the statute at issue to one that would ban taking notes at a public event, the majority reasoned that the First Amendment's guarantee of the right to speak and publish freely would be empty if it did not also bar laws that "operate at different points in the speech process." (18) The ACLU's police accountability program presented a particularly stark challenge to the statute. Open monitoring of police activity would increase the stock of information about the performance of critical public duties and thus would advance "a cardinal First Amendment interest in protecting and promoting the free discussion of governmental affairs. …