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Why Audio/Video Recording Law Enforcement is Necessary and Protected by the First Amendment

By: Jonathon C.A. Blevins

If anything is protected by the First Amendment, audio/video recording a public servant in a public place while performing a public function is protected. One does not need to be a First Amendment scholar to conceptualize the basic foundation of this concept. However, a respected jurist, Judge Posner of the US Court of Appeals for the Seventh Circuit, seemed puzzled.

Chris Drew was arrested in 2009 for selling artwork without a permit. Apparently, this is an arrest- able offense in Chicago, IL. While being arrested, Mr. Drew recorded the events. Unfortunately for Mr. Drew, the act of recording an officer in a public place is a violation of state law. The entire “eavesdropping law” can be found here. The law prevents anyone from eavesdropping on conversations of other people without Court approve. Here is the portion that applies to Mr. Drew:

(b) The eavesdropping of an oral conversation or an electronic communication between any law enforcement officer, State’s Attorney, Assistant State’s Attorney, the Attorney General, Assistant Attorney General, or a judge, while in the performance of his or her official duties, if not authorized by this Article or proper court order, is a Class 1 felony

The ACLU accepted Mr. Drews case and sought an injunction.  The 7th Cir. ruled in favor of an injunction against enforcement of the law. Unfortunately, Mr. Drew did not win his battle with lung cancer. He did not witness his victory. As a result, Chicago announced that it will not utilize the law against demonstrators during the NATO summit in two weeks. Without going into the nuances of why this law will fail, suffice it to say that it is failing in the most basic First Amendment concepts (overbreadth, TMP, content based, etc).

The full 66pg opinion is found here. The Chicago Tribune’s summarized Judge Posner’s dissent. Posner opined:

“the ruling could impair the ability of police both to extract information relevant to police duties and to communicate effectively with people in public”

Those that find fault with those that expose LEO often cite this same reasoning. However, the ability for LEO to perform their duties is outweighed by the people’s right to know. Further people have a right to check the balance of power. Anyone that has contact with the criminal justice system is aware that what an officer says is generally regarded as accurate. The only way for an individual to expose LEOs is to produce audio or video that suggests a different set of events. Also, it says volumes that LEO organizations do not want to allow the public to make these recordings. The recording is as a close to an unbiased “witness” as one can hope to produce. Thus, supporting the law seems to convey that LEO organizations are afraid of what will be captured on video. If this is a legitimate fear, then the redress is to train LEO better and/or hire LEO that utilize better judgment in their performance of a public function.

To demonstrate the need to allow a robust marketplace for public recordings of public officials, here are some examples of when video is useful. The people on the receiving end of police conduct would have no other means of “proving” the events occurred but for video:

  1. Girl is arrested in downtown Orlando for two felonies. She was booked for Battery on LEO and Resisting With Violence. The total possible punishment for her charges is 10 years in prison. Video actually shows girl was accosted by LEO. Here is the article – Here is the video. SAO dropped all charges against the woman but the civil suit against the LEO is ongoing.
  2. Recent arrest of two CA officers that beat a mentally challenged, homeless person to death. Judge ruled the officers can stand trial. Video.
  3. Rodney King.
  4. Occupy  demonstrators on CA campus being pepper sprayed at close range. Video.

It is important to note that not all LEO act like those in the videos. In fact, it is fair to say that most LEOs will go their entire career without an episode like those captured above. But, the people have a right to capture the few instances when it does occur. To make these videographers felons for exposing illegal/improper/unwanted behavior is anithetical to the purpose of the First Amendment.


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