Police Tape

Is Chicago really planning on detaining anyone who records protestor arrests at the G-8 summit?

By Dahlia Lithwick
Posted Tuesday, Jan. 31, 2012, at 6:38 PM ET

In three months, thousands of reporters from around the globe will descend on Chicago for the G-8 summit. Part of what they will chronicle is the protests and police crackdowns that have made each annual meeting so newsworthy. Sadly for all these reporters, and for all the American journalists with plans to film the protestors and cops, any effort to audiotape police activity on public streets or in parks is a crime in Illinois—a crime punishable by 15 years in prison.

Illinois, like Massachusetts and Oregon, is famous for having one of the most draconian eavesdropping laws in the country. The New York Times recently profiled two Illinois citizens who ran afoul of the law that makes it a Class 1 felony to audio record a law-enforcement officer, state’s attorney, assistant state’s attorney, attorney general, assistant attorney general or judge in the performance of his or her duties. It is a crime to use any device “for the purpose of hearing or recording all or any part of any conversation … unless [done] with the consent of all of the parties to such conversation or electronic communication…. ”

One of the two individuals facing a felony conviction is an artist charged with using a digital recorder when he was arrested in 2009 for selling art without a permit. The other is a woman who used her BlackBerry to record Internal Affairs investigators who were interviewing her last August in connection with a sexual harassment complaint she’d filed against a police officer. The ACLU filed a suit last summer, challenging the Illinois law as a violation of the First Amendment and burdening the right of citizens to monitor law enforcement. The suit has been dismissed twice. Wiretapping statutes apply to audio recordings. In 12 states police must give consent to being recorded, but in most of those states, it’s a violation of the wiretap laws only if there is an expectation that the interaction with police is private. It’s hard to make the case that police arrests on public thoroughfares are private activities, although, as Radley Balko showed last year, that hasn’t stopped some states from trying. In Massachusetts and Illinois, however, there is no “expectation of privacy” requirement at all. But whereas in Massachusetts if you hold your recording device in plain sight, the case won’t be prosecuted, courts in Illinois have arrested (and charged) those who are openly recording as well as those who do so in secret.

A bill now pending in the Illinois General Assembly would amend the state law to preclude criminal prosecution for the “[r]ecording of a peace officer who is performing a public duty in a public place and speaking at a volume audible to the unassisted human ear.” That’s a start. And last August, the 1st Circuit Court of Appeals ruled that the Constitution protects citizens who film police carrying out their duties in public. Last week a civil jury in Eugene, Ore. even found that a police officer violated an environmental activist's Fourth Amendment rights by seizing and searching his video camera without a warrant.

While all this presents an enormous constitutional problem for ordinary citizens, the issue is even more fraught for journalists, who at least implicitly perform a vital newsgathering function under the First Amendment. The Reporters Committee for Freedom of the Press (disclosure: I serve on their Steering Committee) has been struggling to keep up with the slew of journalist arrests following various Occupy Wall Street protests. Often, arrests of journalists are used to interrupt the recording, and all charges are dropped once the reporters are transported to police stations. That means the First Amendment isn’t technically violated, but reporters are unable to file their stories and may be held for hours before being released. The fact that cities and police departments virtually never win these suits and may even be on the hook for money damages doesn’t mean that there isn’t a serious problem for journalists. It simply means that, in a pinch, the police have a cumbersome but effective mechanism to shut down contemporaneous recordings of police misconduct as it happens. That’s the part that has to change.

Forty reporters were arrested at the RNC convention in 2008, of whom the most famous was Democracy Now’s Amy Goodman. The federal lawsuit filed by Goodman and her two producers against the Minneapolis and St. Paul police departments was settled in October, with $100,000 paid out by the police and Secret Service. The St. Paul Police Department will also be forced to implement new training procedures on dealing with the press and respecting First Amendment protections at demonstrations. But just as the St. Paul police department is being trained to respect the rights of the press, the Chicago cops are being advised that all of the 3,000 international journalists planning to cover the G-8 will be committing a felony when they turn on their audio devices to record the public arrests of protestors.

In its appeal before the 7th Circuit Court of Appeals, the ACLU is arguing that there is a First Amendment right to gather, record, and disseminate information on the performance of public officials and that “basic tools for gathering, recording, and disseminating expression are changing dramatically in free societies around the world.” Both propositions seem rather self-evident. But at oral argument last fall, Judge Richard Posner made news by appearing to side with the police in the case, worrying, “Once all this stuff can be recorded, there’s going to be a lot more of this snooping around by reporters and bloggers…. There is such a thing as privacy.” And the police claim, as Mark Donahue, president of the Fraternal Order of Police, told the New York Times last week, that audio recording of police officers while performing their duty “can affect how an officer does his job on the street.”

Well of course it does. The whole purpose of the newsgathering function of a free press is to do just that. As Jonathan Turley notes, without citizens recording police misconduct, America wouldn’t have known of the Rodney King beatings. Indeed, King “would have been just another guy with a prior record claiming abuse, against the word of multiple officers.”

A complete recording of arrests would not only allow citizens and journalists to hold overzealous cops to account, but also allow the police to do the same thing with overzealous citizens. That’s why last week, Chicago Police Superintendent Garry McCarthy told a panel at Loyola University that preventing the recording of arrests is as harmful for the police as it is for citizens. Clear and complete audio recordings protect cops against later allegations of abuse and brutality. “I actually am a person who endorses video and audio recording,” McCarthy said. “There’s no arguments when you can look at a videotape and see what happened.”
Police advocates who suggest that out-of-context snippets of taped confrontations will be used during the conventions or the G-8 summit to make police look bad seem to ignore that the First Amendment rests on the promise that the cure for bad speech is always more speech. Recordings will create an indisputable record of what took place. Confiscating recording devices merely because they are on creates an implication that there is something to hide.

The Supreme Court’s ruling last week in the much-anticipated GPS case highlighted the fact that modern technology will always hurtle along faster than the judicial responses to that technology. The patchwork of laws and policies around the country that apply to recording the police is one more area in which rules that arguably made perfect sense 10 years ago are not merely obsolete, but threaten core constitutional values today. Unless we plan to welcome foreign journalists to Chicago with a slice of deep dish pizza and a pair of handcuffs, we need to acknowledge that one can’t claim to be the freest country in the world without fixing a law that makes us look utterly ridiculous in the eyes of the world, even without benefit of a camera.

I know denying the publics right to tape cops making an arrest is less abusive tyranny than denying its right to illegally download a free copy of Lady Gagas new album (though Rodney King might debate that) but I thought this seemed noteworthy.

The FOP officers concern that taping them will influence their behavior is either absurd or alarming. It SHOULD change nothing; as many officers have observed over the years, those with nothing to hide have nothing to fear. That some officers DO have things to hide DOES frighten much of the public.

While I have the highest regard for the right to privacy, I fail to see how it exists in cases of a public servant performing public duties in public with the public. In those situations there should be no more expectation of privacy than the former IL governor convicted of corruption had when the FBI taped him extorting favors for Obamas old Senate seat. At least Blagojevich was on a phone in his office, not standing on a street corner.