May 8 (Bloomberg) -- A U.S. appeals court in Chicago barred Cook County State’s Attorney Anita Alvarez from prosecuting members of the American Civil Liberties Union for making audio recordings of the city’s police officers in the line of duty.
Today’s ruling, which reinstates a 2010 lawsuit filed by the ACLU’s Illinois chapter, comes 12 days before the third-biggest U.S. city hosts a North Atlantic Treaty Organization summit. A protest march is already scheduled.
“The Illinois eavesdropping statute restricts far more speech than necessary to protect legitimate privacy interests,” the U.S. Court of Appeals in Chicago said in a 2-1 decision.
The law makes it a felony to audio record part or all of a conversation without all parties’ consent. Violating the statute when police are involved carries a prison sentence of as long as 15 years, according to the majority ruling. Silent videotaping of officers is lawful.
The ACLU filed the lawsuit to preserve its right to advocate for changes in city police practices, the organization said in a statement today. The decision specifically bars Alvarez’s office from applying the measure against the group and its members.
“In order to make the rights of free expression and petition effective, individuals and organizations must be able to freely gather and record information about the conduct of government and their agents -- especially the police,” ACLU of Illinois Legal Director Harvey Grossman said in the statement.
Andrew Conklin, a spokesman for Alvarez, said her office would soon issue a statement addressing the court’s decision.
The lower court had dismissed the case, concluding the ACLU failed to show a recognizable injury under the free-speech guarantee enshrined in the Constitution’s First Amendment.
“The right to publish or broadcast an audio or audiovisual recording would be insecure, or largely ineffective, if the antecedent act of making the recording is wholly unprotected, as the State’s Attorney insists,” U.S. Circuit Judge Diane Sykes wrote for the majority. She was joined by U.S. Circuit Judge David Hamilton.
U.S. Circuit Judge Richard A. Posner dissented from the majority decision, saying that while recording of a conversation provides a more accurate and truthful record than mere recollection, it could also impinge upon privacy rights and negatively affect law enforcement.
“These are significant social costs,” Posner said. The majority offered no legal or historical basis “for weighting them less heavily than the social value of recorded eavesdropping,” he said.
The case is America Civil Liberties Union of Illinois v. Alvarez, 11-1286, U.S. Court of Appeals for the Seventh Circuit (Chicago).
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