## Facts

- Illinois’s eavesdropping statute criminalized audio recording “all or any part of any conversation” without the consent of all parties, even if the communication was not intended to be private.
- The statute generally made nonconsensual recording a felony and increased penalties when a recorded person was a law-enforcement officer performing official duties.
- The American Civil Liberties Union of Illinois planned a “police accountability program” in which employees and volunteers would openly audio record on-duty police officers in public places while officers spoke at a volume audible to bystanders.
- Because state prosecutors had used the statute against individuals who recorded police in public, the ACLU alleged a credible threat of prosecution and refrained from implementing the program.
- The ACLU filed a pre-enforcement action under 42 U.S.C. § 1983 seeking declaratory and injunctive relief to prevent enforcement of the statute against its planned recordings.

## Issues

1. Whether the ACLU had standing to bring a pre-enforcement First Amendment challenge based on a credible threat of prosecution and resulting self-censorship.
2. Whether the First Amendment protects the act of openly audio recording on-duty police officers performing official duties in public places where their speech is audible to bystanders.
3. Whether, under the applicable First Amendment scrutiny, the ACLU showed a likelihood of success on the merits and the other prerequisites for a preliminary injunction.

## Decision

- The Seventh Circuit reversed the denial of a preliminary injunction and remanded with instructions to enter a preliminary injunction barring enforcement of the statute as applied to the ACLU’s planned open recordings of on-duty police in public.
- The court held the ACLU had standing because it faced a credible threat of prosecution and reasonably self-censored to avoid criminal liability.
- The court concluded the statute likely violated the First Amendment as applied because it restricted a medium of expression used to preserve and communicate information and ideas.
- Treating the law as content neutral, the court applied at least intermediate scrutiny and found the asserted privacy interest minimal in the specific context of public, audible police speech.
- The court found irreparable harm from the ongoing loss of First Amendment freedoms and held the balance of harms and public interest favored injunctive relief.
- A dissent argued the statute permissibly protected conversational privacy and warned against requiring broad exemptions for recording public officials.

## Legal Principles

- A plaintiff may bring a pre-enforcement First Amendment challenge when there is a credible threat of prosecution that causes objectively reasonable self-censorship; the plaintiff need not risk arrest to obtain review.
- The First Amendment can protect audio recording as an antecedent step to speech and press activity, particularly where the recording is for gathering and later disseminating information about government officials.
- A content-neutral restriction on recording is subject to at least intermediate scrutiny: it must serve an important governmental interest and be narrowly tailored while leaving open ample alternative channels.
- As applied to open recording of police performing public duties in public, where speech is already audible to bystanders, the government’s conversational-privacy interest is weak and broad criminal prohibitions are unlikely to be narrowly tailored.
- For preliminary injunctions in First Amendment cases, a likely violation establishes irreparable injury, and courts weigh that injury against the government’s interests and the public interest in free discussion of governmental affairs.

## Conclusion

The Seventh Circuit held that openly audio recording on-duty police officers in public is likely protected by the First Amendment and that Illinois’s broad eavesdropping statute, as applied to such recordings, was unlikely to satisfy intermediate scrutiny; it ordered entry of a preliminary injunction to prevent enforcement against the ACLU’s proposed program.


Am. Civil Liberties Union of Ill. v. Alvarez, 679 F.3d 583 (7th Cir. 2012)