Do freedom of speech and freedom of the press imply a right to film police officers doing their jobs? It's a contentious issue, with some claiming that police ought to be able to serve the public without interference from the cellphone-toting mob, and others pointing to videotaped incidents like the shooting of Oscar Grant as demonstrating the need to hold police accountable. On this issue, the ACLU scored a major victory in the US Court of Appeals for the Seventh Circuit this week, winning an injunction against prosecution for recording on-duty police. Although the ruling only specifically addresses the ACLU, it obviously has far-reaching implications for the enforcement of the law, and perhaps for the right to film police officers more generally.
The case, ACLU v. Alvarez, was originally brought by the ACLU in August of 2010 out of fear that Illinois’s broad eavesdropping statute could be used to prosecute its members for recording police as part of the ACLU's proposed "police accountability program." The ACLU was seeking an injunction against prosecution under the statute, but its case had been dismissed twice before this most recent victory. Unlike in other states, the eavesdropping statute in Illinois makes it a Class 1 felony with a possible prison term of 4 to 15 years to record an on-duty police officer without consent, regardless of whether there is an expectation of privacy — like in a public place, at a volume loud enough for bystanders to hear. It's worth noting that the statute only prohibits audio recordings — silent video recordings of on-duty officers are perfectly legal under the law.
Judge Posner, who dissented with the majority ruling, voiced concerns about electronic privacy, noting "a person who is talking with a police officer on duty may be a suspect whom the officer wants to question; he may be a bystander…In many of these encounters the person conversing with the police officer may be very averse to the conversation’s being broadcast on the evening news or blogged throughout the world." As Ars Technica points out, Judge Posner has been critical of the ACLU's argument and its implications for increased "snooping around by reporters and bloggers."