The Constitutional Right to Record


By Russell Smith

An Illinois eavesdropping law makes it is a Class 1 felony – carrying a penalty of up to 15 years in prison – to use any device to “hear or record a conversation” involving police, prosecutors, or judges without their permission. Most states have similar eavesdropping laws, but almost all have an exception for recording police conversations when officers have no “expectation of privacy.”

Generally, there is no legal expectation of privacy for conversations that take place on public streets or sidewalks; that’s why New York City doesn’t ban people from taking pictures of terror targets, like train stations or federal offices, so long as the photo is taken from a sidewalk or public street. And that’s why in most states, it’s not criminal for bystanders to whip out their cell phones to film police officers arresting or mistreating people at public protests.

But the Illinois eavesdropping law has no “expectation of privacy” exception. Chicago police have seized on this, using the law as a justification for snatching cell phones and video cameras from Occupy Chicago observers trying to document police misconduct occurring during demonstrations.

At Firedoglake, Kevin Gosztola suggested that the existing Illinois wiretapping law “violates the civil liberties of people in Illinois.” On Slate, Dahlia Lithwick bemoaned the “enormous constitutional problem” posed by the law, especially for journalists. But lost in the media’s disdain is a clear articulation of exactly what constitutional right the eavesdropping law infringes.

LASIS will clarify.  

Most people know that the First Amendment protects the “freedom of the press.” While the majority of Supreme Court cases involving the freedom of the press have concerned the press’s First Amendment right to publish information, the Court has also recognized the press’s right to gather information.

The Supreme Court first noted this newsgathering right in the 1972 case of Branzburg v. Hayes,  which involved a journalist who refused to comply with a government subpoena to identify his sources. The ruling was splintered, and complicated, but the majority stated – for the first time – that the First Amendment protects the right of the press to collect information. Without such a right, said the court, our free press would be “eviscerated”.

In 1974’s Pell v. Procunier, journalists challenged a San Quentin prison regulation that prohibited one-on-one interviews with selected inmates, claiming it infringed on their First Amendment right to gather news. The Supreme Court held that the First Amendment does not provide the press with any special right of access to information. Since San Quentin did not allow the public to have one-on-one interviews with inmates, journalists had no right to personal interviews either. This case made it absolutely clear that the professional press and general public each have an equivalent constitutional right to gather news, subject to some government restrictions.

Those government restrictions can be tricky, though, (how much restriction is too much restricton?) and lower courts have crafted this general rule: so long as the government’s actions are reasonable, measures taken to limit access of the press or the public to information are constitutional. So if the government can assert, for example, that journalists’ presence at an event would pose safety risks to either the public or police, a court will likely find the government’s restriction reasonable and in compliance with the First Amendment. But when the government acts unreasonably in restricting in-person access to newsworthy events – well, that’s a different ballgame altogether, and a constitutional violation has occurred.

The most common restriction on the right to gather information is press credentialing. For mayoral press conferences or Senate hearings, with only limited seating available, restricting the number of press participants is reasonable, and even necessary. (Sorry to be the bearer of bad news for Josh Fox, the fracking activist who was arrested last week for filming a Senate hearing without proper credentials, but he has no First Amendment defense.) But outdoors, where there are no space limitations, credentialing doesn’t make sense. Yet police continue to obstruct or arrest citizen-journalists at Occupy protests for not being properly credentialed.

Similarly, obstructing or arresting a journalist from filming public protests, under the guise of carrying out Illinois’s eavesdropping law, is a violation of that person’s First Amendment right to gather the news.

The ACLU has challenged the constitutionality of the Illinois eavesdropping law, but in January of last year, a federal district court in Chicago dismissed the case, stating that there “is nothing in the Constitution which guarantees the right to record a public event.” Did the court forget to check the First Amendment?

The case has been appealed to the federal appellate court in Chicago, and while one judge on the appellate panel has already expressed skepticism about the ACLU’s case, the court would be mistaken to ignore the clear constitutional right to record.

In May, thousands of activists will descend on Chicago for protests of the G-8 Summit. With clashes between police, citizens and cell phone cameras a near certainty, an Illinois legislator has introduced a bill to exempt the recording of police officers’ public conduct from the eavesdropping law.  Even if passed, changes to the law won’t be made before the Summit.

A ruling from the federal appellate court in Chicago upholding the First Amendment right to record could straighten out this mess.   Stay tuned.

UPDATE:  March 3, 2012:  A Cook County judge found the law banning the recording the police to be too far-reaching.  Read about it here.


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