https://law.justia.com/cases/federal/appellate-courts/ca7/11-1286/11-1286-2012-05-08.html
The American Civil Liberties Union appeals from the denial of a preliminary injunction in its suit against the Cook County State’s
Attorney (that is, the “D.A.” of Cook County, Illinois) to invalidate the Illinois Eavesdropping Act as a violation of freedom of speech (more precisely, freedom to publish or otherwise disseminate other people’s speech).
I would affirm the district court. The Act criminalizes “knowingly and intentionally us[ing] an eavesdropping device for the purpose of hearing or recording all or any part of any conversation” without “the consent of all of the parties to such conversation.” 720 ILCS 5/14-2(a)(1). My colleagues have decided to reverse, and to order the entry of a preliminary injunction against enforcement of the Eavesdropping Act.
But why a preliminary injunction? The opinion gives no indication of what argument or evidence presented
on remand might allow the district court again to uphold the Act.
The invalidation of a statute on constitutional grounds should be a rare and solemn judicial act, done with reluctance under compulsion of clear binding precedent or
clear constitutional language or—in the absence of those traditional sources of guidance—compelling evi-
dence, or an overwhelming gut feeling, that the statute has intolerable consequences. The law invalidated
today is not an outdated one left on the books by legislative inertia, like many of the laws invalidated by
the Supreme Court in famous cases such as Griswold v. Connecticut, 381 U.S. 479 (1965). In its present form it
54 No. 11-1286 dates only from 1994. It is stricter than provisions found in the laws governing electronic eavesdropping in
most other states because it requires both parties to consent to a recording of their conversation. Maybe it’s too strict in forbidding nonconsensual recording
even when done in defense of self or others, as when the participant in a conversation records it in order to create credible evidence of blackmail, threats, other
forms of extortion, or other unlawful activity, as in Glik
v. Cunniffe, 655 F.3d 78 (1st Cir. 2011). But that feature
of the statute is irrelevant. The ACLU insists on, and
the majority opinion endorses, the right to record con-
versations to which police officers are parties even if
no party consents to the recording, as long as the
officers are performing public duties (as distinct from
talking with one another on a private topic) in a public
place and speaking loudly enough to be heard by a
person who doesn’t have special equipment for
amplifying sound—in other words, a person standing
nearby.
Our ruling casts a shadow over electronic privacy
statutes of other states as well, to the extent that they can
be interpreted to require the consent of at least one party
to a conversation to record it even though the conversa-
tion takes place that in a public place, if the conversa-
tion could nevertheless reasonably be thought private by
the parties. The statutes of several states are so open-
ended that they could easily be found invalid under
the approach taken in the majority opinion. See Alaska
Stat. Ann. § 42.20.310; Ark. Code. Ann. § 5-60-120;
Cal. Penal Code § 632(c); Mich. Comp. Laws Ann.
No. 11-1286 55
§ 750.539c; N.D. Cent. Code. Ann. § 12.1-15-02. The Cali-
fornia statute is illustrative. It states that “the term ‘con-
fidential communication’ includes any communica-
tion carried on in circumstances as may reasonably indicate
that any party to the communication desires it to
be confined to the parties thereto, but excludes a com-
munication made in a public gathering or in any legisla-
tive, judicial, executive or administrative proceeding
open to the public, or in any other circumstance in
which the parties to the communication may reasonably
expect that the communication may be overheard or
recorded.” The words are clear, the meaning is clear,
but the application is unclear. Should a conversation in
a public place, but intended to be private, be thought a
“communication that any party desires to be confined
to the parties”? It is both intended to be private
and remote from a communication made in a “public
gathering,” a term that from its placement connotes a
public meeting of some sort. But what of the exclusion
of private communications that the parties “may rea-
sonably expect . . . may be overheard or recorded”? That
fogs the issue of which private communications are
protected. To read the statute literally would exclude
all private communications, for any private communica-
tion can be overheard and recorded, even if it is a con-
versation in a closed room.
A number of state privacy statutes tee off from
the statement in Katz v. United States, 389 U.S. 347, 351
(1967), that “what a person knowingly exposes to the
public, even in his own home or office, is not a subject of
Fourth Amendment protection. But what he seeks to
56 No. 11-1286
preserve as private, even in an area accessible to the
public, may be constitutionally protected.” See, e.g., Fla.
Stat. § 934.02(2); Ohio Rev. Code Ann. § 2933.51(B);
Texas Penal Code § 16.02(b)(1), incorporating Tex. Code
Crim. P. art. 18.20 § 1(1); cf. 18 U.S.C. § 2510(2). The
police in Katz had recorded the defendant’s phone call,
made in a public telephone booth, by secretly fastening
a microphone to the booth, and the Court held that
the phone call violated the Fourth Amendment because
the police had no warrant. Suppose the telephone
booth had had no door, or that though it had a door the
booth was not soundproof and someone standing five
feet away could hear the conversation. Or suppose a
police officer is talking in a low voice to a crime victim
on a crowded sidewalk; there are people within
earshot but the conversants reasonably assume that no
one is listening, though they notice someone looking at
his cell phone and the recorder in the cell phone might
be turned on. We can’t predict the impact of today’s
decision on the laws of most other states.
The ACLU particularly wants to record conversations
to which a police officer is a party during demonstrations
in public places, such as the march protesting the start
of the second Iraq war that was before us in Vodak v. City
of Chicago, 639 F.3d 738 (7th Cir. 2011). That is its par-
ticular desire, but if its constitutional argument is
correct, anyone has a constitutional right to record all
such conversations, not just groups like the ACLU,
and journalists, because neither the ACLU nor the
press has greater First Amendment rights than other
No. 11-1286 57
members of the public. Citizens United v. Federal Election
Commission, 130 S. Ct. 876, 905-06 (2010); Lovell v. City of
Griffin, 303 U.S. 444, 452 (1938); see generally Eugene
Volokh, “Freedom for the Press as an Industry, or for
the Press as a Technology? From the Framing to Today,”
160 U. Pa. L. Rev. 459 (2012). Nor would the right be
limited to political demonstrations; it would extend to
all audible police conversations in public places,
whether outdoors on sidewalks and in parks or indoors
in the lobbies or other public spaces of courthouses
and other government buildings.
Judges asked to affirm novel “interpretations” of the
First Amendment should be mindful that the constitu-
tional right of free speech, as construed nowadays, is
nowhere to be found in the Constitution. The relevant
provision of the First Amendment merely forbids
Congress to abridge free speech, which as understood
in the eighteenth century meant freedom only from
censorship (that is, suppressing speech, rather than just
punishing the speaker after the fact). A speaker could
be prosecuted for seditious libel, for blasphemy, and for
much other reprobated speech besides, but in a prosecu-
tion he would at least have the protection of trial by
jury, which he would not have if hauled before a censor-
ship board; and his speech or writing would not have
been suppressed, which is what censorship boards do.
Protection against censorship was the only protection
that the amendment was understood to create. Patterson
v. Colorado, 205 U.S. 454, 461-62 (1907) (Holmes, J.);
Blue Canary Corp. v. City of Milwaukee, 251 F.3d 1121, 1123
(7th Cir. 2001); Akhil Reed Amar, The Bill of Rights: Creation
58 No. 11-1286
and Reconstruction 23-24 (1998); cf. 4 William Blackstone,
Commentaries on the Laws of England 150-53 (1769).
The limitation of the amendment to Congress, and
thus to federal restrictions on free speech (the First Amend-
ment does not apply to state action), and to censorship
is the original understanding. Judges have strayed so
far from it that further departures should be under-
taken with caution. Even today, with the right to free
speech expanding in all directions, it remains a partial,
a qualified, right. To make it complete would render
unconstitutional defamation law, copyright law, trade
secret law, and trademark law; tort liability for wire-
tapping, other electronic eavesdropping, and publicly
depicting a person in a “false light”; laws criminalizing
the publication of military secrets and the dissemination
of child pornography; conspiracy law (thus including
much of antitrust law); prohibitions of criminal solicita-
tion, threats and fighting words, securities fraud, and
false advertising of quack medical remedies; the regula-
tion of marches, parades, and other demonstrations
whatever their objective; limitations on free speech
in prisons; laws limiting the televising of judicial pro-
ceedings; what little is left of permitted regulation
of campaign expenditures; public school disciplining of
inflammatory or disruptive student speech; the attorney-
client, spousal, and physician-patient privileges in cases
in which an attorney or spouse or physician would like
to speak but is forbidden by the privilege to do so;
laws making medical records confidential; and prohibi-
tions against the public disclosure of jurors’ names in
cases in which jurors might be harassed. All these legal
No. 11-1286 59
restrictions of free speech are permitted (some because
they may actually increase the amount of speech, a
point I’ll come back to). The question in this case is
whether a state, to protect both privacy and public
safety, should be allowed in addition to forbid the re-
cording of conversations between police officers and
members of the public in a public place unless both
parties to the conversation consent to being recorded
for posterity.
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 whom the police are shooing
away from the scene of a crime or an accident; he may
be an injured person seeking help; he may be a crime
victim seeking police intervention; he may be asking
for directions; he may be arguing with a police officer
over a parking ticket; he may be reporting a traffic acci-
dent. In many of these encounters the person con-
versing with the police officer may be very averse to the
conversation’s being broadcast on the evening news
or blogged throughout the world. In some instances
such publicity would violate the tort right of privacy, a
conventional exception to freedom of speech as I have
noted. Restatement (Second) of Torts §§ 652A, 652D (1977)
(“unreasonable publicity given to [another person’s]
private life”); Wolfe v. Schaefer, 619 F.3d 782, 784 (7th Cir.
2010); Reuber v. Food Chemical News, Inc., 925 F.2d 703, 718-
19 (4th Cir. 1991) (en banc) (“publiciz[ing] private facts
in a highly offensive manner about an issue not of
public concern”); Miller v. Motorola, Inc., 560 N.E.2d 900
60 No. 11-1286
(Ill. App. 1990). This body of law is endangered by
today’s ruling.
Privacy is a social value. And so, of course, is public
safety. The constitutional right that the majority creates
is likely to impair the ability of police both to extract
information relevant to police duties and to communi-
cate effectively with persons whom they speak with in
the line of duty. An officer may freeze if he sees a jour-
nalist recording a conversation between the officer and
a crime suspect, crime victim, or dissatisfied member
of the public. He may be concerned when any stranger
moves into earshot, or when he sees a recording
device (even a cell phone, for modern cell phones are
digital audio recorders) in the stranger’s hand. To
distract police during tense encounters with citizens
endangers public safety and undermines effective law
enforcement.
The majority opinion disclaims any intention of
“immuniz[ing] behavior that obstructs or interferes
with effective law enforcement.” I am not reassured. A
fine line separates “mere” recording of a police-citizen
encounter (whether friendly or hostile) from obstructing
police operations by distracting the officers and upsetting
the citizens they are speaking with. Today’s ruling
may cause state and federal judicial dockets in Illinois
to swell because it will unwittingly encourage police
officers to shoo away bystanders, on the authority of cases
like Colten v. Kentucky, 407 U.S. 104, 109-10 (1972); cf. City
of Houston v. Hill, 482 U.S. 451, 462 n. 11 (1987); King v.
Ambs, 519 F.3d 607, 613-15 (6th Cir. 2008), when the
No. 11-1286 61
officer wants to have a private conversation in a public
place.
That the Eavesdropping Act, despite its name, does not
punish the bystander who overhears a conversation
without recording it does not have the significance that
the majority opinion gives it. There is an important dif-
ference, well articulated in Justice Harlan’s dissent in
United States v. White, 401 U.S. 745, 787-89 (1971) (footnotes
omitted), between human and mechanical eavesdropping:
The impact of the practice of third-party bugging,
must, I think, be considered such as to undermine
that confidence and sense of security in dealing
with one another that is characteristic of individual
relationships between citizens in a free society. It
goes beyond the impact on privacy occasioned by
the ordinary type of “informer” investigation . . . . The
argument of the plurality opinion, to the effect that
it is irrelevant whether secrets are revealed by
the mere tattletale or the transistor, ignores the dif-
ferences occasioned by third-party monitoring and
recording which insures full and accurate disclosure
of all that is said, free of the possibility of error
and oversight that inheres in human reporting.
Authority is hardly required to support the proposi-
tion that words would be measured a good deal more
carefully and communication inhibited if one sus-
pected his conversations were being transmitted
and transcribed. Were third-party bugging a
prevalent practice, it might well smother that sponta-
neity—reflected in frivolous, impetuous, sacrilegious,
62 No. 11-1286
and defiant discourse—that liberates daily life. Much
off-hand exchange is easily forgotten and one may
count on the obscurity of his remarks, protected by
the very fact of a limited audience, and the
likelihood that the listener will either overlook or
forget what is said, as well as the listener’s inability
to reformulate a conversation without having to
contend with a documented record. All these values
are sacrificed by a rule of law that permits official
monitoring of private discourse limited only by the
need to locate a willing assistant.
The distinction that Justice Harlan drew between an
overheard private conversation recalled from memory
and one that is recorded is something everyone feels—
and feels more acutely in the electronic age than
41 years ago. Walter Kirn, “Little Brother Is Watching,”
New York Times Magazine (Oct. 17, 2010); William
Saletan, “Bugged Naked: Webcams, Sex, and the Death
of Privacy,” Slate (Oct. 1, 2010); William Safire, “To Stop
the Eavesdrop,” New York Times (Dec. 20, 1999). Americans
face new challenges to privacy because of the amount
of personal information stored and publicly accessible
online and the ubiquity of recording devices. Lizette
Alvarez, “Spring Break Gets Tamer as World Watches
Online,” New York Times (March 16, 2012); Jeffrey Rosen,
“The Web Means the End of Forgetting,” New York Times
(July 25, 2010); Jonathan Zittrain, “Privacy 2.0,” 2008 U.
Chi. Legal Forum 65, 81-91. Lacking relevant expertise,
lacking evidence, forced back on intuition, judges
should hesitate to invalidate legislative attempts to
solve these problems.
Police may have no right to privacy in carrying out
official duties in public. But the civilians they interact
with do. The majority opinion “acknowledge[s] the dif-
ference in accuracy and immediacy that an audio
recording provides as compared to notes or even silent
videos or transcripts” but says that “in terms of the
privacy interests at stake, the difference is not sufficient
to justify criminalizing this particular method of pre-
serving and publishing the public communications of
these public officials” (emphasis in original). The assertion
lacks a supporting argument, and by describing the
recording as a “method of preserving and publishing
the public communications of these public officials”
neglects the fact that the recording will publish and
preserve what the civilians with whom the police are
conversing say, not just what the police say. The further
statement that these “are not conversations that carry
privacy expectations even though uttered in public
places” implies that anything said outdoors is ipso facto
public. Yet people often say things in public that they
don’t expect others around them to be listening to, let
alone recording for later broadcasting, and we are given
no reason to think that this is never the case when
someone complains to a police officer, or otherwise
speaks with one, “in public” in the sense of being in a
place in which there are other people about.
Suppose a police detective meets an informant in a
park and they sit down on a park bench to talk. A crime
reporter sidles up, sits down next to them, takes out
his iPhone, and turns on the recorder. The detective and
the informant move to the next park bench to continue
64 No. 11-1286
their conversation in private. The reporter follows them.
Is this what the Constitution privileges?
It is small consolation to be told by the majority that
“the ACLU plans to record openly, thus giving the
police and others notice that they are being recorded”
(emphasis in original). All the ACLU means is that it
won’t try to hide its recorder from the conversants
whom it wants to record, though since the typical
recorder nowadays is a cell phone it will be hidden in
plain view. A person who doesn’t want his conservation
to be recorded will have to keep a sharp eye out for
anyone nearby holding a cell phone, which in many
urban settings is almost everyone. The ubiquity of re-
cording devices will increase security concerns by dis-
tracting the police.
There is more on the state’s side of this case than
privacy of communications and the effectiveness of law
enforcement—and the more is the same First Amendment
interest that the ACLU says it wants to promote. The
majority opinion concedes that “conversational privacy”
“serves First Amendment interests,” but thinks there
can be no conversational privacy when the conversation
takes place in a public place; it says that “this case
has nothing to do with private conversations.” But
private talk in public places is common, indeed
ubiquitous, because most people spend a lot of their
time in public places; because they rely on their
anonymity and on the limited memory of others to mini-
mize the risk of publication; because public places are
(paradoxically) often more private than private places
No. 11-1286 65
(imagine if detectives could meet with their informants
only in police stations); and because eavesdropping on
strangers is actually rather uncommon because it is
so difficult in most cases to understand a conversa-
tion between strangers. “Anyone who’s overheard con-
versations on the street or in a restaurant knows that
conversations between strangers are often unintelligi-
ble. There is the public language we employ when
talking to strangers and the elliptical private language
that we use when talking to people whom we know.
Strangers need an interpreter . . . .” United States v. Curescu,
674 F.3d 735, 740 (7th Cir. 2012).
I disagree with the majority that “anyone who wishes
to speak to police officers in confidence can do so,” and
“police discussions about matters of national and local
security do not take place in public where bystanders
are within earshot.” Forget national security; the
people who most need police assistance and who most
want their conversations kept private are often the
people least able to delay their conversation until they
reach a private place. If a person has been shot or raped
or mugged or badly injured in a car accident or has wit-
nessed any of these things happening to someone else,
and seeks out a police officer for aid, what sense would
it make to tell him he’s welcome to trot off to the
nearest police station for a cozy private conversation,
but that otherwise the First Amendment gives passersby
the right to memorialize and publish (on Facebook, on
Twitter, on YouTube, on a blog) his agonized plea for
help? And as in our informant example, many of the
persons whom police want to talk to do not want to be
seen visiting police stations.
66 No. 11-1286
Accuracy is a social value, and a recording of a con-
versation provides a more accurate record of the con-
versation than the recollection of the conversants: more
accurate, and also more truthful, since a party to a con-
versation, including a police officer, may lie about what
he heard or said. But on the other side of the balance
are the inhibiting effect of nonconsensual recording of
conversations on the number and candor of conversations
(and hence on values that the First Amendment pro-
tects); the baleful effect on privacy; the negative effect
on law enforcement; and the litigation likely to be en-
gendered by police officers’ shooing away intruders
on their private conversations with citizens. These are
significant social costs, and the majority opinion offers
no basis in fact or history, in theory or practice, in con-
stitutional text or judicial precedent, for weighting
them less heavily than the social value of recorded eaves-
dropping.
