Do You Have a First Amendment Right to Record Police Without Their Permission?

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police officer seemingly objecting to being recorded

If you’re not interfering with his official duties, does he have to put up with your recording him?

The Supreme Court declined to hear an appeal today of a case involved prosecution under an Illinois law that made it felonious eavesdropping to audio record police acting in public without first gaining their permission.  The law was used to punish those who tried to monitor police actions.

In that critical lower-court ruling in May, the 7th U.S. Circuit Court of Appeals found that the law — one of the toughest of its kind in the country — violates the First Amendment when used against those who record police officers doing their jobs in public.

Civil libertarians say the ability to record helps guard against police abuse. The law’s proponents, however, say it protects the privacy rights of officers and civilians, as well as ensures that those wielding recording devices don’t interfere with urgent police work.

The Illinois Eavesdropping Act, enacted in 1961, makes it a felony for someone to produce an audio recording of a conversation unless all the parties involved agree. It sets a maximum punishment of 15 years in prison if a law enforcement officer is recorded.

[The case] stems from a 2010 lawsuit by the American Civil Liberties Union seeking to block Alvarez from prosecuting ACLU staff for recording police officers performing duties in public — one of the group’s long-standing monitoring missions.

The District Attorney for the Chicago area argued in a brief that discarding the law would make citizens less willing to talk to the police in public for fear of being monitored by long-distance surveillance devices.

Does this mean that it’s as safe to do this in Orange County as it will now be in Chicago?  Not necessarily — although without the harsh sort of Illinois law on the books anywhere here, we won’t really know.  By not taking the appeal, the Supreme Court simply allows the lower-court ruling to cover the Midwestern states within the Seventh Circuit.  Often the court will only take a case where there is a split between two or more circuits on a point of law.

The larger problem for those who would record police actions is that while recording the police is not illegal as a rule, according to this decision, it can still be illegal in practice in a given instance if it interferes with official police business.  Police have made that argument against protesters in the past — and it’s unlikely that a court would bar that justification for arrest entirely.  Whether someone interfered by recording police activity would have to be determined on a case-by-case basis — which can, of course, be expensive and upsetting for the accused.  Still, while this decision doesn’t apply to California, the likelihood that a court will find that one can legally record the police in public without their permission in our state has just increased.  For those who think that a monitored police force is a better police force, that’s a significant victory.

About Greg Diamond

Somewhat verbose attorney, semi-retired due to disability, residing in northwest Brea. Occasionally runs for office against bad people who would otherwise go unopposed. Got 45% of the vote against Bob Huff for State Senate in 2012; Josh Newman then won the seat in 2016. In 2014 became the first attorney to challenge OCDA Tony Rackauckas since 2002; Todd Spitzer then won that seat in 2018. Every time he's run against some rotten incumbent, the *next* person to challenge them wins! He's OK with that. Deposed as Northern Vice Chair of DPOC in April 2014 (in violation of Roberts Rules) when his anti-corruption and pro-consumer work in Anaheim infuriated the Building Trades and Teamsters in spring 2014, who then worked with the lawless and power-mad DPOC Chair to eliminate his internal oversight. Expelled from DPOC in October 2018 (in violation of Roberts Rules) for having endorsed Spitzer over Rackauckas -- which needed to be done. None of his pre-putsch writings ever spoke for the Democratic Party at the local, county, state, national, or galactic level, nor do they now. One of his daughters co-owns a business offering campaign treasurer services to Democratic candidates and the odd independent. He is very proud of her. He doesn't directly profit from her work and it doesn't affect his coverage. (He does not always favor her clients, though she might hesitate to take one that he truly hated.) He does advise some local campaigns informally and (so far) without compensation. (If that last bit changes, he will declare the interest.)