Influential judge has cramped view of First Amendment

Monday, May 14, 2012

Those fond of the First Amendment should be glad that Richard Posner isn’t in charge of interpreting it.

Posner, a long-time judge on the 7th U.S. Circuit Court of Appeals, is one of the most prolific and influential jurists in the country. An intellectual leader of the law-and-economics school of thought, he is a frequent author, lecturer and blogger on a wide range of topics. His narrow view of the First Amendment, however, has perhaps never been clearer than in his recent dissent in American Civil Liberties Union of Illinois v. Alvarez.

In Alvarez, the ACLU of Illinois challenged in federal court the constitutionality of the Illinois eavesdropping statute, which makes it a felony to audio record any conversation unless all parties to the conversation consent. The statute requires an enhanced penalty — with a possible prison term of up to 15 years — if at least one of the non-consenting recorded persons is a law enforcement officer performing his or her official duties.

The statute has been the subject of much discussion and litigation in recent years, as prosecutors have stepped up enforcement of the law against individuals recording police activity with hand-held cameras and cell phones. Despite the fact that a state judge in March found the statute unconstitutional, legislative efforts since then to modify the law have been unsuccessful.

In its suit, the ACLU sought a declaratory judgment that the statute could not be constitutionally enforced against the organization’s “police accountability program,” which includes a plan to make audio-visual recordings of police officers performing their duties in public places. Of special interest to the ACLU is the recording how officers handle protesters.

The trial judge denied the ACLU’s request, finding the statute did not threaten to cause the organization a First Amendment injury, because the officers and civilians who would be recorded were not “willing speakers.”

But on appeal, the majority of the 7th Circuit’s three-judge panel reversed the trial court’s decision and ordered that a preliminary injunction be entered prohibiting enforcement of the statute against the ACLU pending further proceedings.

In reversing the trial court, the majority had little difficulty concluding that making “an audio or audiovisual recording is necessarily included within the First Amendment’s guarantee of speech and press rights as a corollary of the right to disseminate the resulting recording.”

“By way of a simple analogy,” the majority continued, “banning photography or note-taking at a public event would raise serious First Amendment concerns; a law of that sort would obviously affect the right to publish the resulting photograph or disseminate a report derived from the notes. The same is true of a ban on audio and audiovisual recording.”

Because the statute does not punish audio recording of only certain political or other views, the majority held that the test for whether the statute could survive was whether its burden on First Amendment rights was no greater than necessary to further an important governmental interest. The statute failed that test, the majority said, because the state could not identify any important interest in prohibiting the recording of law enforcement officers performing duties in public places.

In dissent, Posner disagreed with almost every element of the majority’s holding and used his dissent to express his frustration with the current state of First Amendment jurisprudence, which he believes is far from the moorings of the framers’ original intent.

“[T]he constitutional right of free speech, as construed nowadays, is nowhere to be found in the Constitution,” Posner wrote. “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).”

“The limitation of the amendment to Congress, and thus to federal restrictions on free speech (the First Amendment does not apply to state action), and to censorship is the original understanding,” Posner continued, though failing to note that the U.S. Supreme Court in 1868 interpreted the 14th Amendment as applying the First Amendment to the states.  “Judges have strayed so far from it that further departures should be undertaken with caution. Even today, with the right to free speech expanding in all directions, it remains a partial, a qualified, right.”(Parenthetical material and italics are Posner’s.)

Pointing to a long list of circumstances in which regulation of speech is permitted — including child pornography, securities fraud and laws making medical records confidential — Posner argued that Illinois should be allowed to add to that list a prohibition against recording conversations between police officers and members of the public in public places.

“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 communicate effectively with persons whom they speak with in the line of duty,” Posner said. “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.”

Given the extent to which law enforcement agencies record civilians during investigations, arrests and interviews, it seems somewhat ironic to claim that recording police personnel in public places will somehow adversely affect personal privacy and public safety. In any event, the notion that reporters and others have a First Amendment right to film and write down what they see in public places but not the right to record what they hear in those same places is difficult to understand and justify.

No one alive today, of course, knows what the Framers intended or what they would think about audio and visual recording, much less about the Internet, Facebook and YouTube. Something tells me, though, that if we could bring them here, give them cell phones and place them in the midst of a public demonstration featuring police and protesters, most of them would be smiling as they recorded everything they could see — and hear.

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