American Civil Liberties Union of Ill. v. Alvarez

In the

United States Court of Appeals
For the Seventh Circuit

No. 11-1286

AMERICAN CIVIL LIBERTIES UNION OF ILLINOIS,

Plaintiff-Appellant,
v.

ANITA ALVAREZ,
Defendant-Appellee.

Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 10 C 5235—Suzanne B. Conlon, Judge.

ARGUED SEPTEMBER 13, 2011—DECIDED MAY 8, 2012

Before POSNER, SYKES, and HAMILTON, Circuit Judges.
SYKES, Circuit Judge. The Illinois eavesdropping statute
makes it a felony to audio record “all or any part of
any conversation” unless all parties to the conversation
give their consent. 720 ILL. C OMP. S TAT. 5/14-2(a)(1). The
statute covers any oral communication regardless of
whether the communication was intended to be private.
Id. 5/14-1(d). The offense is normally a class 4 felony but
is elevated to a class 1 felony—with a possible prison
2 No. 11-1286

term of four to fifteen years—if one of the recorded indi-
viduals is performing duties as a law-enforcement officer.
Id. 5/14-4(b). Illinois does not prohibit taking silent video
of police officers performing their duties in public;
turning on a microphone, however, triggers class 1 felony
punishment.
The question here is whether the First Amendment
prevents Illinois prosecutors from enforcing the eaves-
dropping statute against people who openly record
police officers performing their official duties in public.
More specifically, the American Civil Liberties Union
of Illinois (“ACLU”) challenges the statute as applied to
the organization’s Chicago-area “police accountability
program,” which includes a plan to openly make audio-
visual recordings of police officers performing their
duties in public places and speaking at a volume audible
to bystanders. Concerned that its videographers would
be prosecuted under the eavesdropping statute, the
ACLU has not yet implemented the program. Instead,
it filed this preenforcement action against Anita Alvarez,
the Cook County State’s Attorney, asking for declaratory
and injunctive relief barring her from enforcing the
statute on these facts. The ACLU moved for a prelim-
inary injunction.
Faced with so obvious a test case, the district court
proceeded with some skepticism. The judge dismissed
the complaint for lack of standing, holding that the
ACLU had not sufficiently alleged a threat of prosecution.
The ACLU tried again, submitting a new complaint
addressing the court’s concerns. This time, the judge held
No. 11-1286 3

that the ACLU had cured the original defect but had “not
alleged a cognizable First Amendment injury” because
the First Amendment does not protect a “right to audio
record.” The judge denied leave to amend. The ACLU
appealed.
We reverse and remand with instructions to allow
the amended complaint and enter a preliminary injunc-
tion blocking enforcement of the eavesdropping statute
as applied to audio recording of the kind alleged here.
The Illinois eavesdropping statute restricts a medium
of expression commonly used for the preservation and
communication of information and ideas, thus trig-
gering First Amendment scrutiny. Illinois has criminalized
the nonconsensual recording of most any oral communica-
tion, including recordings of public officials doing the
public’s business in public and regardless of whether
the recording is open or surreptitious. Defending the
broad sweep of this statute, the State’s Attorney relies on
the government’s interest in protecting conversational
privacy, but that interest is not implicated when police
officers are performing their duties in public places and
engaging in public communications audible to persons
who witness the events. Even under the more lenient
intermediate standard of scrutiny applicable to content-
neutral burdens on speech, this application of the statute
very likely flunks. The Illinois eavesdropping statute
restricts far more speech than necessary to protect legiti-
mate privacy interests; as applied to the facts alleged
here, it likely violates the First Amendment’s free-
speech and free-press guarantees.
4 No. 11-1286

I. Background
A. The Illinois Eavesdropping Law
In 1961 the Illinois General Assembly enacted a law
making it a crime to use “an eavesdropping device to
hear or record all or part of any oral conversation
without the consent of any party thereto.” 1961 Ill. Laws
1983. The statute defines “eavesdropping device” as “any
device capable of being used to hear or record oral con-
versation.” Id. (codified at 720 ILL. C OMP. S TAT. 5/14-1(a));
see also Celia Guzaldo Gamrath, A Lawyer’s Guide to Eaves-
dropping in Illinois, 87 ILL. B.J. 362, 363 (1999) (discussing
the history of the Illinois eavesdropping law). The legisla-
ture later amended the law to require the consent of “all
of the parties” to the conversation. Ill. Pub. Act 79-1159
(1976) (codified at 720 ILL. C OMP. S TAT. 5/14-2(a)(1)).
In People v. Beardsley, 503 N.E.2d 346, 349-50 (Ill. 1986),
the Illinois Supreme Court adopted a narrow interpreta-
tion of the eavesdropping statute, declaring that audio
recordings were prohibited only if the circumstances
“entitle [the conversing parties] to believe that the con-
versation is private and cannot be heard by others
who are acting in a lawful manner.” In other words, re-
cording a conversation was punishable under the eaves-
dropping statute only if the conversing parties had an
“expectation of privacy,” though the court remarked
that the expectations of privacy protected under the
statute were not necessarily “coextensive with those
imposed on governmental action by the fourth amend-
ment.” Id. at 351.
No. 11-1286 5

Eight years later the state supreme court reaffirmed
its Beardsley decision in People v. Herrington, 645 N.E.2d
957 (Ill. 1994). The court held that “there can be no ex-
pectation of privacy by the declarant where the indi-
vidual recording the conversation is a party to that con-
versation.” Id. at 958. Chief Justice Bilandic dissented,
arguing that normal privacy expectations include an
assumption that most conversations are not being re-
corded. Id. at 959-60 (Bilandic, C.J., dissenting). He also
distinguished Beardsley because the parties to the con-
versation in that case “knew that the defendant had
the tape recorder” and therefore “gave their implied
consent to the recording of their conversation.” Id. at 960.
The defendant in Herrington, by contrast, recorded a
conversation surreptitiously.
In 1994 the Illinois legislature amended the eavesdrop-
ping statute so that it applies to “any oral communica-
tion between 2 or more persons regardless of whether
one or more of the parties intended their communication
to be of a private nature under circumstances justifying
that expectation.” Ill. Pub. Act 88-677 (1994) (codified
at 720 ILL. C OMP. S TAT. 5/14-1(d)). This amendment effec-
tively overrode the Beardsley and Herrington decisions.
As later interpreted by the Illinois Supreme Court,
under the amended statute a party’s consent may be
“inferred from the surrounding circumstances indicating
that the party knowingly agreed to the surveillance.”
People v. Ceja, 789 N.E.2d 1228, 1241 (Ill. 2003). However,
express disapproval defeats any inference of consent.
Plock v. Bd. of Educ. of Freeport Sch. Dist. No. 145, 920
N.E.2d 1087, 1095 (Ill. App. Ct. 2009).
6 No. 11-1286

The eavesdropping statute exempts recordings made
by law-enforcement officers for law-enforcement pur-
poses; officers have substantial discretion to record a
wide variety of police-civilian encounters without the
subject’s consent. 720 ILL. C OMP. S TAT. 5/14-3(h). These
include any “enforcement stop,” a broadly defined term
that includes “traffic stops,” “motorist assists,” “pedestrian
stops,” and “requests for identification.” Id. Surreptitious
law-enforcement intercepts for investigative purposes
are governed by different subsections of the statute. See
id. 5/14-3(g), (g-5), (g-6). The eavesdropping statute also
contains an exemption for the media, at least in some
circumstances; it exempts any recording made for “broad-
cast by radio, television, or otherwise” for live or “later
broadcasts of any function where the public is in atten-
dance and the conversations are overheard incidental
to the main purpose for which such broadcasts are
then being made.” Id. 5/14-3(c).

B. The ACLU’s First Amendment Challenge
The ACLU filed this suit against Alvarez in her
official capacity seeking declaratory and injunctive relief
under 42 U.S.C. § 1983 barring her from enforcing the
eavesdropping statute against audio recording that the
organization plans to carry out in connection with its
“police accountability program.” More specifically, the
ACLU intends to implement a “program of promoting
police accountability by openly audio recording police
officers without their consent when: (1) the officers are
performing their public duties; (2) the officers are in
No. 11-1286 7

public places; (3) the officers are speaking at a volume
audible to the unassisted human ear; and (4) the manner
of recording is otherwise lawful.” The program will
include, among other things, audiovisual recording
of policing at “expressive activity” events—protests
and demonstrations—in public fora in and around
the Chicago area. The organization also plans to make
audiovisual recordings of policing at “expressive ac-
tivities” carried out by its members. The ACLU
intends to publish these recordings online and through
other forms of electronic media.
The ACLU alleged that its planned audiovisual
recording is protected under the First Amendment’s
speech, press, and petition clauses, but because of a
credible fear of prosecution, it has not followed through
on its program. The complaint asked for a declaratory
judgment holding the eavesdropping statute unconstitu-
tional as applied to the ACLU’s planned recording and
for a corresponding injunction barring the Cook County
State’s Attorney from enforcing the statute against the
ACLU or its agents who carry out the recording. The
ACLU also moved for a preliminary injunction.
The State’s Attorney moved to dismiss under Rules
12(b)(1) and 12(b)(6) of the Federal Rules of Civil Proce-
dure, arguing that the ACLU lacks standing and failed
to state a claim of a First Amendment violation. The
district court granted the motion on jurisdictional
grounds, holding that the complaint did not adequately
allege a credible fear of prosecution and that the ACLU
therefore lacked standing to sue. The dismissal was
8 No. 11-1286

without prejudice, however, so the ACLU moved to amend
the judgment under Rule 59(e) to allow an amended
complaint under Rules 15(a)(2) and 21. The proposed
amended complaint addressed the standing defect the
court had identified, adding two individual plain-
tiffs—Colleen Connell, the ACLU’s Executive Director,
and Allison Carter, the ACLU’s Senior Field Man-
ager—and more detail about the threat of prosecution.
The ACLU renewed its motion for a preliminary injunc-
tion.
The State’s Attorney opposed this second round of
motions, and again the district court agreed. The judge
held that although the ACLU had “cured the limited
standing deficiencies” and now “sufficiently alleg[ed]
a threat of prosecution,” the proposed amended com-
plaint contained a different standing defect. Relying on
Potts v. City of Lafayette, 121 F.3d 1106, 1111 (7th Cir.
1997), the judge held that “[t]he ACLU has not alleged
a cognizable First Amendment injury” because the First
Amendment does not protect “a right to audio record.”
The judge also held that the ACLU had no First Amend-
ment injury because the police officers and civilians
who would be recorded were not “willing speakers.” The
judge viewed the ACLU’s claim as “an unprecedented
expansion of the First Amendment” and held that
granting leave to amend would be futile because “[t]he
ACLU has not met its burden of showing standing to
assert a First Amendment right or injury.” The judge
denied the motion to amend and thus declined to
address the request for a preliminary injunction. This
appeal followed.
No. 11-1286 9

II. Discussion
A. Rule 59(e), Rule 15(a), and Preliminary-Injunction
Standards
This case comes to us from an order denying a Rule 59(e)
motion to alter or amend a judgment to allow the filing
of an amended complaint under Rule 15(a)(2). We
review this ruling for an abuse of discretion. Sigsworth v.
City of Aurora, Ill., 487 F.3d 506, 511 (7th Cir. 2007). But “[i]f
the district court reached its conclusion because of its
interpretation of relevant law, . . . then we review that
question of law de novo because a district court’s applica-
tion of an erroneous view of the law is by definition
an abuse of discretion.” Sosebee v. Astrue, 494 F.3d 583,
586 (7th Cir. 2007).
The district court’s decision turned on mistaken under-
standings about the relevant First Amendment doctrine.
As we will explain, the ACLU and its employees have
standing; they face a credible threat of prosecution
under the eavesdropping statute, and their amended
complaint plainly alleges a First Amendment injury.
Denying leave to amend also had the effect of denying
the ACLU’s request for preliminary injunctive relief.
The ACLU asks that we address that matter here.
“To win a preliminary injunction, a party must show
that it has (1) no adequate remedy at law and will suffer
irreparable harm if a preliminary injunction is denied
and (2) some likelihood of success on the merits.” Ezell v.
City of Chicago, 651 F.3d 684, 694 (7th Cir. 2011). If the
moving party makes this threshold showing, the court
“weighs the factors against one another, assessing
10 No. 11-1286

whether the balance of harms favors the moving party or
whether the harm to the nonmoving party or the public
is sufficiently weighty that the injunction should be
denied.” Id.
Ordinarily we would remand to allow the district
court to weigh the preliminary-injunction factors in the
first instance. However, in First Amendment cases,
“the likelihood of success on the merits will often be the
determinative factor.” Joelner v. Village of Washington
Park, Ill., 378 F.3d 613, 620 (7th Cir. 2004). This is be-
cause the “loss of First Amendment freedoms, for even
minimal periods of time, unquestionably constitutes
irreparable injury,” Elrod v. Burns, 427 U.S. 347, 373 (1976)
(plurality opinion), and the “quantification of injury is
difficult and damages are therefore not an adequate
remedy,” Flower Cab Co. v. Petitte, 685 F.2d 192, 195
(7th Cir. 1982). Moreover, if the moving party establishes
a likelihood of success on the merits, the balance of
harms normally favors granting preliminary injunctive
relief because the public interest is not harmed by pre-
liminarily enjoining the enforcement of a statute that
is probably unconstitutional. Joelner, 378 F.3d at 620.
Stated differently, “injunctions protecting First Amend-
ment freedoms are always in the public interest.” 1

1
The State’s Attorney argues that a preliminary injunction is
inappropriate here because it would grant the ACLU affirma-
tive relief rather than preserving the status quo. The Supreme
Court has long since foreclosed this argument. See Ashcroft v.
ACLU, 542 U.S. 656, 670-71 (2004) (finding a preenforcement
(continued...)
No. 11-1286 11

Christian Legal Soc’y v. Walker, 453 F.3d 853, 859 (7th Cir.
2006).
The parties have fully briefed the likelihood of success
on the merits, which raises only a legal question. In
this situation, it makes sense for us to address whether
preliminary injunctive relief is warranted. See Wis. Right
to Life State PAC v. Barland, 664 F.3d 139, 151 (7th Cir.
2011) (on appeal from an abstention order, deciding the
plaintiff’s entitlement to an injunction because it raised
a pure legal question under the First Amendment).
We are confronted, then, with a series of legal ques-
tions: (1) has the ACLU established standing to sue;
(2) does the amended complaint state a claim for a First
Amendment violation; and (3) is that claim likely to
succeed? The district court stopped after the first
inquiry, holding that the ACLU does not have standing
to sue because it has no cognizable First Amendment
injury. The State’s Attorney urges us to affirm this
standing determination, though on a different rationale.
In the alternative, she maintains that the proposed

1
(...continued)
preliminary injunction appropriate to protect First Amendment
rights because “speakers may self-censor rather than risk the
perils of trial”); Doran v. Salem Inn, Inc., 422 U.S. 922, 931 (1975)
(“[P]rior to final judgment there is no established declaratory
remedy comparable to a preliminary injunction; unless prelimi-
nary relief is available upon a proper showing, plaintiffs in
some situations may suffer unnecessary and substantial irrepa-
rable harm.”).
12 No. 11-1286

amended complaint does not state a claim for an
actionable First Amendment violation. Standing comes
before the merits, of course, In re Aqua Dots Prods. Liab.
Litig., 654 F.3d 748, 750 (7th Cir. 2011), but as we’ll see, in
this case there is some overlap, see Bond v. Utreras, 585
F.3d 1061, 1073 (7th Cir. 2009).

B. Standing
Standing is “an essential and unchanging part of the
case-or-controversy requirement of Article III.” Lujan
v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). To
establish standing to sue in federal court,
a plaintiff must show that he is under threat of suf-
fering “injury in fact” that is concrete and particular-
ized; the threat must be actual and imminent, not
conjectural or hypothetical; it must be fairly
traceable to the challenged action of the defendant;
and it must be likely that a favorable judicial
decision will prevent or redress the injury.
Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009)
(citing Friends of Earth, Inc. v. Laidlaw Envtl. Servs. (TOC),
Inc., 528 U.S. 167, 180-81 (2000)). Our review is de novo.
Pollack v. U.S. Dep’t of Justice, 577 F.3d 736, 739 (7th Cir.
2009).
It is well established that “preenforcement challenges . . .
are within Article III.” Brandt v. Village of Winnetka, Ill.,
612 F.3d 647, 649 (7th Cir. 2010). To satisfy the injury-in-
fact requirement in a preenforcement action, the
plaintiff must show “an intention to engage in a course
No. 11-1286 13

of conduct arguably affected with a constitutional
interest, but proscribed by a statute, and [that] there
exists a credible threat of prosecution thereunder.”
Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289,
298 (1979). Stated differently, “[a] person need not risk
arrest before bringing a pre-enforcement challenge
under the First Amendment . . . .” Schirmer v. Nagode, 621
F.3d 581, 586 (7th Cir. 2010) (citing Holder v. Humanitarian
Law Project, 130 S. Ct. 2705, 2717 (2010)); see also Ezell,
651 F.3d at 695. The “existence of a statute implies
a threat to prosecute, so pre-enforcement challenges
are proper [under Article III], because a probability
of future injury counts as ‘injury’ for the purpose of
standing.” Bauer v. Shepard, 620 F.3d 704, 708 (7th Cir.
2010); see also Majors v. Abell, 317 F.3d 719, 721 (7th Cir.
2003) (A preenforcement plaintiff “need not show that
the authorities have threatened to prosecute him” be-
cause “the threat is latent in the existence of the statute.”).
The district court dismissed the first version of the
ACLU’s complaint because it did not sufficiently allege
a credible threat of prosecution under the eaves-
dropping statute. The proposed amended complaint
added two individual plaintiffs—ACLU employees
Connell and Carter—and more details about the threat
of prosecution, including information about recent prose-
cutions under the eavesdropping statute on like facts.
That was enough to satisfy the district court on this
point; based on the new allegations, the judge found
that “[t]he threat of prosecution is credible and imminent.”
At this point, however, the judge perceived a different
standing defect—one related to the merits of the claim.
14 No. 11-1286

Relying on our decision in Potts, the judge held that the
First Amendment does not protect a “right to audio
record” and therefore the ACLU had not alleged a con-
stitutional injury. This was a misreading of Potts.
The issue in Potts was whether a police officer may
refuse entry to an onlooker at a Ku Klux Klan rally because
he wanted to bring a video camera onto the site. 121
F.3d at 1109-12. Past Klan rallies had inspired violence,
so the police in Lafayette, Indiana, where the rally was
to be held, established a rule banning any object that
could be used as a weapon or projectile. John Potts
arrived with a small video recorder and was denied
entry based on the broad “no weapons” rule. He defied
a police officer’s order and entered anyway, and was
promptly arrested.
Potts then sued the City of Lafayette and two officers
alleging First and Fourth Amendment violations. We
affirmed the summary judgment in favor of the defen-
dants. Id. at 1114. Addressing the First Amendment claim,
we said that “there is nothing in the Constitution which
guarantees the right to record a public event.” Id. at 1111
(citing Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 610
(1978) (explaining that the Sixth Amendment does not
require broadcasting trials to the public); United States v.
Kerley, 753 F.2d 617, 620-22 (7th Cir. 1985) (recognizing that
the exclusion of cameras from federal courtrooms is
constitutional)). The district court seized on this single
sentence from Potts and read it for much more than it’s
worth.
Immediately after this sentence is the following
clarifying explanation: “The right to gather information
No. 11-1286 15

may be limited under certain circumstances. . . . The
proper constitutional measure of the . . . ‘weapons’ ban
is whether the restriction constitutes a valid time, place,
or manner regulation.” Id. In other words, as applied
to Potts, Lafayette’s ban did implicate free-speech
interests under the First Amendment, but it was subject
to review under the “time, place, or manner” standard
applicable to content-neutral regulations. Our opinion
in Potts continues on for several more pages, carefully
applying that standard and upholding the weapons ban.
Id. at 1111-12. If Potts stood for a categorical proposition
that audiovisual recording is wholly unprotected, as
the district court seemed to think, none of this analysis
would have been necessary.
The court’s second reason for rejecting the amended
complaint was also off the mark. The judge held that
without a “willing speaker,” the ACLU had no First
Amendment injury. In other words, because the ACLU
does not plan to obtain consent from the officers and
others whose communications will be recorded, there
will be no “willing speakers” and the ACLU has no
First Amendment right to receive and record their
speech. By conceptualizing the case in this way, the
judge seems to have assumed that, at most, only deriva-
tive speech rights are at stake.
That’s an incorrect assumption. The district court’s
reliance on the “willing speaker” principle gets the doc-
trine right but its application wrong. It is well established
that “[w]hen one person has a right to speak, others
hold a ‘reciprocal right to receive’ the speech.” Ind. Right
16 No. 11-1286

to Life, Inc. v. Shepard, 507 F.3d 545, 549 (7th Cir. 2007)
(quoting Va. State Bd. of Pharmacy v. Va. Citizens Consumer
Council, Inc., 425 U.S. 748, 757 (1976)). It’s also true that
this derivative “right to receive” or “right to listen”
principle “presupposes a willing speaker.” Va. State Bd. of
Pharmacy, 425 U.S. at 756; see also Shepard, 507 F.3d at
549 (“a precondition of the right to receive . . . is the
existence of a willing speaker” (internal quotation marks
omitted)); Bond, 585 F.3d at 1077. But this is not a third-
party “right to receive” case. The ACLU does not claim
to be an intended recipient of police (or police-civilian)
communications or to have a reciprocal right to receive
the officers’ speech as a corollary of the officers’ right
to speak.
Any bystander within earshot can hear what police
officers say in public places; “receipt” occurs when the
speech is uttered in public and at a volume that others
can hear. In other words, the officers’ speech is “received”
at the moment it is heard; the eavesdropping statute
obviously does not prohibit this. The ACLU’s challenge
to the statute implicates a different set of First Amend-
ment principles. The “right to receive” strand of First
Amendment doctrine—with its “willing speaker” precon-
dition—has no bearing on the ACLU’s standing.
The State’s Attorney does not argue otherwise. Instead,
she returns to the original standing problem that the
district court identified. Alvarez maintains, as she did in
the district court, that the ACLU has not alleged a
credible threat of prosecution. We disagree. The eaves-
dropping statute plainly prohibits the ACLU’s proposed
No. 11-1286 17

audio recording; Alvarez acknowledges as much. The
recording will be directed at police officers, obviously
increasing the likelihood of arrest and prosecution. The
statute has not fallen into disuse. To the contrary,
the ACLU has identified many recent prosecutions
against individuals who recorded encounters with on-
duty police officers; three of these were filed by
Alvarez’s office.2 Finally, Alvarez has not foresworn the
possibility of prosecuting the ACLU or its employees
and agents if they audio record police officers without
consent. See Commodity Trend Serv., Inc. v. Commodity
Futures Trading Comm’n, 149 F.3d 679, 687 (7th Cir. 1998)

2
The Cook County prosecutions are People v. Drew, No. 10-cr-46
(Cook Cnty., Ill., Cir. Ct.), People v. Moore, No. 10-cr-15709 (Cook
Cnty., Ill., Cir. Ct.), and People v. Tate, No. 11-cr-9515
(Cook Cnty., Ill., Cir. Ct.). We note that the presiding judge
in People v. Drew recently held that the eavesdropping statute
violates substantive due process and dismissed the case.
People v. Drew, No. 10-cr-46 (Cook Cnty., Ill., Cir. Ct. Mar. 7,
2012). The ACLU identified the following additional prosecu-
tions under the eavesdropping statute for civilian audio
recording of law-enforcement officers: People v. Thompson,
No. 04-cf-1609 (6th Cir., Champaign Cnty., Ill.); People v. Wight,
No. 05-cf-2454 (17th Cir., Winnebago Cnty., Ill.); People v.
Babarskas, No. 06-cf-537 (12th Cir., Will Cnty., Ill.); People v.
Allison, No. 09-cf-50 (2d Cir., Crawford Cnty., Ill.); People v.
Parteet, No. 10-cf-49 (16th Cir., DeKalb Cnty., Ill.); People v.
Biddle, No. 10-cf-421 (16th Cir., Kane Cnty., Ill.); People v.
Fitzpatrick, No. 10-cf-397 (5th Cir., Vermillion Cnty., Ill.); People
v. Lee, No. 08-cf-1791 (12th Cir., Will Cnty., Ill.); and People v.
Gordon, No. 10-cf-341 (11th Cir., Livingston Cnty., Ill.).
18 No. 11-1286

(“The Supreme Court has instructed us that a threat
of prosecution is credible when a plaintiff’s intended
conduct runs afoul of a criminal statute and the Gov-
ernment fails to indicate affirmatively that it will not
enforce the statute.” (citing Virginia v. Am. Booksellers
Ass’n, Inc., 484 U.S. 383, 393 (1988))). These allega-
tions are easily sufficient to establish a credible threat of
prosecution.
Alvarez’s arguments to the contrary are unavailing.
She insists that the ACLU’s program is “advocacy
under the guise of First Amendment infringement”
without any possibility of a “personal and concrete
injury.” We confess we do not understand the point.
The ACLU’s status as an advocacy organization hardly
defeats its standing. The organization intends to use
its employees and agents to audio record on-duty
police officers in public places. The ACLU claims a First
Amendment right to undertake this recording, but the
eavesdropping statute prohibits it from doing so. The
ACLU itself, and certainly its employees and agents
(Connell, Carter, and others), will face prosecution for
violating the statute. See 720 ILL. C OMP. S TAT. 5/14-1(b), (c)
(defining “eavesdropper” and the liability of an eaves-
dropper’s “principal”); see more generally id. 5/5-4(a)(2)
(providing for corporate liability if the “offense is autho-
rized, requested, commanded, or performed, by the
board of directors or by a high managerial agent who
is acting within the scope of his or her employment in
behalf of the corporation”). Nothing more is needed
for preenforcement standing.
No. 11-1286 19

The State’s Attorney maintains that the injury alleged
here is “merely conjectural or hypothetical” because
the threat of prosecution will only occur “at some indefi-
nite future time” and “the identities of the parties to the
conversations that [the] ACLU and its members want to
audio record is wholly unknown.” This argument is a
nonstarter. It is well established that in preenforcement
suits “[i]njury need not be certain.” Brandt, 612 F.3d at
649. This is not a case in which the threat of prosecution
hinges on a highly attenuated claim of speculative
future events or unknowable details about the manner
in which the statutory violation will be committed or
enforced. Cf., e.g., City of Los Angeles v. Lyons, 461 U.S. 95,
105-06 (1983) (future injury depended on plaintiff
violating an unchallenged law and provoking constitu-
tional violations based on the manner of police enforce-
ment); Schirmer, 621 F.3d at 587 (challenged law could
not “fairly be read to prohibit” plaintiffs’ actions).
It’s true that the ACLU does not know precisely when
it or its employees would face prosecution or which
officers would be involved. Preenforcement suits always
involve a degree of uncertainty about future events.
See Brandt, 612 F.3d at 649 (“Any pre-enforcement suit
entails some element of chance . . . .”). So long as that
uncertainty does not undermine the credible threat of
prosecution or the ability of the court to evaluate the
merits of the plaintiff’s claim in a preenforcement
posture, there is no reason to doubt standing. Here,
absent officer consent, the eavesdropping statute flatly
prohibits the ACLU’s planned recording, exposing the
organization and its employees to arrest and criminal
20 No. 11-1286

punishment. The State’s Attorney has recently pros-
ecuted similar violations and intends to continue doing
so. That’s enough to establish a credible threat of pros-
ecution.3
Finally, the State’s Attorney argues that principles
of Younger abstention affect the standing inquiry, or
alternatively, that Younger abstention applies. See Younger

3
Although the State’s Attorney does not raise it, a possible
ground for doubting standing might be that openly made
recordings could fall within the implied-consent doctrine. See
People v. Ceja, 789 N.E.2d 1228, 1241 (Ill. 2003) (Consent may be
“inferred from the surrounding circumstances,” including
facts showing that “a party knows of . . . encroachments on
the routine expectation that conversations are private.”).
Implied consent is a factual issue for trial in a prosecution
under the eavesdropping statute. That the ACLU and its
employees may face prosecution is injury enough for
preenforcement standing, even though they might be able to
defend based on implied consent. Moreover, the implied-
consent doctrine, and more particularly its potential applica-
tion in particular cases, is sufficiently ambiguous for the
ACLU to have a credible fear of criminal liability. See, e.g.,
Williams v. Poulos, 11 F.3d 271, 281 (1st Cir. 1993) (“Implied
consent is not . . . constructive consent. Rather, implied consent
is consent in fact which is inferred from surrounding circum-
stances indicating that the party knowingly agreed to the sur-
veillance.” (citations and internal quotation marks omitted));
see also Schirmer v. Nagode, 621 F.3d 581, 586 (7th Cir. 2010)
(“[W]hen an ambiguous statute arguably prohibits certain
protected speech, a reasonable fear of prosecution can
provide standing for a First Amendment challenge.”).
No. 11-1286 21

v. Harris, 401 U.S. 37 (1971). “Younger abstention is ap-
propriate only when there is an action in state court
against the federal plaintiff and the state is seeking to
enforce the contested law in that proceeding.” Forty One
News, Inc. v. County of Lake, 491 F.3d 662, 665 (7th Cir. 2007).
We have suggested in dicta that if a state prosecution
“really were imminent, then a federal court might well
abstain on comity grounds.” 520 S. Mich. Ave. Assocs., Ltd.
v. Devine, 433 F.3d 961, 963 (7th Cir. 2006). The State’s
Attorney maintains that because standing requires an
imminent injury, Younger abstention must apply. By
this logic, Younger precludes all federal preenforcement
challenges to state laws. That’s obviously not right. The
State’s Attorney’s argument misunderstands the basis
of preenforcement standing, which “depends on the
probability of harm, not its temporal proximity.” Id. at
962. Younger abstention does not apply and does not
affect the standing inquiry. See Hoover v. Wagner, 47 F.3d
845, 848 (7th Cir. 1995).

C. The First Amendment Claim
On the merits the State’s Attorney has staked out an
extreme position. She contends that openly recording
what police officers say while performing their duties in
traditional public fora—streets, sidewalks, plazas, and
parks—is wholly unprotected by the First Amendment.
This is an extraordinary argument, and it rests in large
part on the same misreading of Potts and misapplication
of the “willing speaker” principle that infected the
district court’s standing determination. We have already
22 No. 11-1286

corrected these misunderstandings and need not re-
peat that analysis here.
For its part the ACLU contends that the eavesdropping
statute, as applied to the facts alleged here, is subject
to strict scrutiny. Whether strict scrutiny or some more
forgiving standard of judicial review applies depends
on what kind of First Amendment interest is at stake
and how the eavesdropping statute affects that interest.

1. The Eavesdropping Statute Burdens Individual
Speech and Press Rights
Unlike the federal wiretapping statute and the eaves-
dropping laws of most other states,4 the gravamen of
the Illinois eavesdropping offense is not the secret inter-
ception or surreptitious recording of a private commu-
nication. Instead, the statute sweeps much more broadly,
banning all audio recording of any oral communication
absent consent of the parties regardless of whether the
communication is or was intended to be private. The

4
As best we can tell, the Illinois statute is the broadest of its
kind; no other wiretapping or eavesdropping statute prohibits
the open recording of police officers lacking any expectation
of privacy. See 18 U.S.C. § 2510(2); Jesse Harlan Alderman,
Police Privacy in the iPhone Era?, 9 F IRST A MEND . L. R EV . 487, 533-
45 (2011) (collecting state statutes); cf. O R . R EV . S TAT .
§ 165.540(1)(c), (6)(a) (exempting “unconcealed” recordings
at public events but otherwise requiring that “all participants
in the conversation are specifically informed that their con-
versation is being obtained”).
No. 11-1286 23

expansive reach of this statute is hard to reconcile with
basic speech and press freedoms. For reasons we will
explain, the First Amendment limits the extent to
which Illinois may restrict audio and audiovisual
recording of utterances that occur in public.5
Audio and audiovisual recording are media of expres-
sion commonly used for the preservation and dissemina-
tion of information and ideas and thus are “included
within the free speech and free press guaranty of the
First and Fourteenth Amendments.” Burstyn v. Wilson,
343 U.S. 495, 502 (1952) (holding that movies are a pro-
tected form of speech). Laws that restrict the use of ex-
pressive media have obvious effects on speech and
press rights; the Supreme Court has “voiced
particular concern with laws that foreclose an entire
medium of expression.” City of Ladue v. Gilleo, 512 U.S.
43, 55 (1994) (collecting cases); see also Reno v. ACLU,
521 U.S. 844, 869-70 (1997) (recognizing that the internet
is a “dynamic, multifaceted category of communication”
and that there is “no basis for qualifying the level of
First Amendment scrutiny that should be applied to
this medium”).
The act of making an audio or audiovisual recording
is necessarily included within the First Amendment’s

5
The First Amendment provides that “Congress shall make
no law . . . abridging the freedom of speech, or of the press,”
U.S. C ONST . amend. I, and applies to the States through
Section 1 of the Fourteenth Amendment, U.S. C ONST . amend.
XIV, § 1. See Near v. Minnesota ex rel. Olson, 283 U.S. 697,
707 (1931).
24 No. 11-1286

guarantee of speech and press rights as a corollary of
the right to disseminate the resulting recording. The
right to publish or broadcast an audio or audiovisual
recording would be insecure, or largely ineffective, if the
antecedent act of making the recording is wholly unpro-
tected, as the State’s Attorney insists. By way of a
simple analogy, 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.
This is a straightforward application of the principle
that “[l]aws enacted to control or suppress speech
may operate at different points in the speech process.”
Citizens United v. FEC, 130 S. Ct. 876, 896 (2010). The
Illinois eavesdropping statute regulates the use of a
medium of expression; the Supreme Court has recognized
that “regulation of a medium [of expression] inevitably
affects communication itself.” City of Ladue, 512 U.S. at
48 (invalidating an ordinance banning residential signs).
Put differently, the eavesdropping statute operates at
the front end of the speech process by restricting the use
of a common, indeed ubiquitous, instrument of communi-
cation. Restricting the use of an audio or audiovisual
recording device suppresses speech just as effectively
as restricting the dissemination of the resulting recording.
As our colleagues in the Ninth Circuit have observed,
there is no fixed First Amendment line between the act
of creating speech and the speech itself:
No. 11-1286 25

Although writing and painting can be reduced to
their constituent acts, and thus described as
conduct, we have not attempted to disconnect the
end product from the act of creation. Thus, we have
not drawn a hard line between the essays John
Peter Zenger published and the act of setting the type.
Cf. Minneapolis Star & Tribune Co. v. Minn. Comm’r of
Revenue, 460 U.S. 575, 582 (1983) (holding that a tax
on ink and paper “burdens rights protected by the
First Amendment”). The process of expression
through a medium has never been thought so
distinct from the expression itself that we could
disaggregate Picasso from his brushes and canvas, or
that we could value Beethoven without the benefit
of strings and woodwinds. In other words, we have
never seriously questioned that the processes of
writing words down on paper, painting a picture,
and playing an instrument are purely expressive
activities entitled to full First Amendment protection.
Anderson v. City of Hermosa Beach, 621 F.3d 1051, 1061-62
(9th Cir. 2010).
This observation holds true when the expressive
medium is mechanical rather than manual. For instance,
“[i]f the state were to prohibit the use of projectors
without a license, First Amendment coverage would
undoubtedly be triggered. This is not because projectors
constitute speech acts, but because they are integral to
the forms of interaction that comprise the genre of the
cinema.” Robert Post, Encryption Source Code and the
First Amendment, 15 B ERKELEY T ECH. L.J. 713, 717 (2000).
26 No. 11-1286

The Supreme Court’s campaign-finance cases illustrate
how laws of this sort trigger First Amendment scrutiny.
The Court held long ago that campaign-finance regula-
tions implicate core First Amendment interests be-
cause raising and spending money facilitates the resulting
political speech. See Buckley v. Valeo, 424 U.S. 1, 19 (1976)
(per curiam) (restricting money spent on political commu-
nications “necessarily reduces the quantity of expression
by restricting the number of issues discussed, the depth
of their exploration, and the size of the audience
reached”); see also Citizens United, 130 S. Ct. at 898 (invali-
dating the federal ban on corporate and union spending
for political speech because the government may not
“repress speech by silencing certain voices at any of
the various points in the speech process”); McConnell v.
FEC, 540 U.S. 93, 252 (2003) (Scalia, J., concurring in part
and dissenting in part) (“The right to speak would be
largely ineffective if it did not include the right to
engage in financial transactions that are the incidents of
its exercise.”); Nixon v. Shrink Mo. Gov’t PAC, 528 U.S.
377, 400 (2000) (Breyer, J., concurring) (“[A] decision to
contribute money to a campaign is a matter of First
Amendment concern—not because money is speech (it is
not); but because it enables speech.”).
So too with laws that restrict audio recording. Audio
and audiovisual recording are communication technolo-
gies, and as such, they enable speech. Criminalizing all
nonconsensual audio recording necessarily limits the
information that might later be published or broad-
cast—whether to the general public or to a single family
member or friend—and thus burdens First Amend-
No. 11-1286 27

ment rights. If, as the State’s Attorney would have it,
the eavesdropping statute does not implicate the First
Amendment at all, the State could effectively control
or suppress speech by the simple expedient of restricting
an early step in the speech process rather than the
end result. We have no trouble rejecting that premise.
Audio recording is entitled to First Amendment
protection.6
And here, the First Amendment interests are quite
strong. On the factual premises of this case, the eaves-
dropping statute prohibits nonconsensual audio re-
cording of public officials performing their official
duties in public. ” ‘[T]here is practically universal agree-
ment that a major purpose of’ the First Amendment
‘was to protect the free discussion of governmental af-
fairs’ . . . .” Ariz. Free Enter. Club’s Freedom Fund PAC
v. Bennett, 131 S. Ct. 2806, 2828 (2011) (quoting Buckley,
424 U.S. at 14). This agreement “ ‘reflects our profound
national commitment to the principle that debate on
public issues should be uninhibited, robust, and wide-

6
For more on how the First Amendment protects the use of
communications technology, see Eugene Volokh, Freedom for
the Press as an Industry, or for the Press as a Technology? From
the Framing to Today, 160 U. P A . L. R EV . 459 (2012); Seth F.
Kreimer, Pervasive Image Capture and the First Amendment:
Memory, Discourse, and the Right to Record, 159 U. P A . L. R EV . 335
(2011); Diane Leenheer Zimmerman, I Spy: The Newsgatherer
Under Cover, 33 U. R ICH . L. R EV . 1185 (2000); Rodney A. Smolla,
Privacy and the First Amendment Right to Gather News, 67
G EO . W ASH . L. R EV . 1097 (1999).
28 No. 11-1286

open.’ ” Id. at 2828-29 (quoting Buckley, 424 U.S. at 14,
quoting New York Times v. Sullivan, 373 U.S. 254, 270
(1964)). Moreover, “the First Amendment goes be-
yond protection of the press and self-expression of indi-
viduals to prohibit government from limiting the
stock of information from which members of the public
may draw.” First Nat’l Bank of Bos. v. Bellotti, 435 U.S.
765, 783 (1977). The freedom of speech and press “ ‘em-
braces at the least the liberty to discuss publicly and
truthfully all matters of public concern without previous
restraint or fear of subsequent punishment.’ ” Id. at 767
(quoting Thornhill v. Alabama, 310 U.S. 88, 101-02 (1940)).
In this regard, the ACLU’s challenge to the eavesdrop-
ping statute also draws on the principle that the First
Amendment provides at least some degree of protection
for gathering news and information, particularly news
and information about the affairs of government. See
Branzburg v. Hayes, 408 U.S. 665, 681 (1972). In Branzburg
a news reporter claimed a First Amendment privilege to
refuse to testify before a grand jury about his confidential
sources. Id. at 667. The reporter argued that without an
implied testimonial privilege, the right “of the press
to collect and disseminate news” would be undermined.
Id. at 698.
The Court rejected this claim, but before doing so it
made the following general observation:
The heart of the claim is that the burden on news
gathering resulting from compelling reporters to
disclose confidential information outweighs any
public interest in obtaining the information [by grand-
jury subpoena].
No. 11-1286 29

We do not question the significance of free speech,
press, or assembly to the country’s welfare. Nor is it
suggested that news gathering does not qualify
for First Amendment protection; without some pro-
tection for seeking out the news, freedom of the
press could be eviscerated.
Id. at 681. The Court declined to fashion a special journal-
ists’ privilege for essentially two reasons. First, the Court
relied on the general principle that “the First Amend-
ment does not invalidate every incidental burdening of
the press that may result from the enforcement of civil
or criminal statutes of general applicability.” Id. at 682.
By this the Court meant that “otherwise valid laws
serving substantial public interests may be enforced
against the press as against others, despite the possible
burden that may be imposed.” Id. at 682-83 (emphasis
added). Stated differently, the institutional press “ ‘has
no special immunity from the application of general
laws.’ ” Id. at 683 (quoting Associated Press v. NLRB,
301 U.S. 103, 132-33 (1937)). Second, the Court held that
the public interest in detecting, punishing, and deterring
crime was much stronger than the marginal increase in
the flow of news about crime that a journalist’s testi-
monial privilege might provide. See id. at 700-01.
We will return to the point about generally applicable
laws in a moment. For now, it is enough to note that the
Court did not use that principle to reject the reporter’s
claim out of hand. Instead, the Court evaluated the
State’s demand for the reporter’s testimony against the
First Amendment interests at stake and held that the
30 No. 11-1286

public’s interest in obtaining “ ‘every man’s evidence’ ”
justified the incidental burden on First Amendment
rights. Id. at 687 (quoting United States v. Bryan, 339
U.S. 323, 331 (1950)). The Court specifically reserved
the question whether in a particular case, a subpoena for
a reporter’s testimony might be a pretext for “[o]fficial
harassment of the press,” a circumstance that “would
pose wholly different issues for resolution under the
First Amendment.” Id. at 707.
The Supreme Court has not elaborated much on its
abstract observation in Branzburg that “news gathering
is not without its First Amendment protections.” 7 Id. The

7
One exception appears to be the Court’s caselaw recognizing
a limited constitutional “right of access” to certain governmental
proceedings. Based in part on the principle that the First
Amendment protects a right to gather information about the
government, the Court has recognized a qualified right of
the press and public to attend certain governmental proceed-
ings, at least where the proceeding “historically has been open
to the press and general public,” and public access “plays
a particularly significant role” in the functioning of the pro-
ceeding in question and “the government as a whole.” Globe
Newspaper Co. v. Super. Ct. for the Cnty. of Norfolk, 457 U.S.
596, 605-06 (1982) (holding that a statute mandating closure
of criminal trial during testimony of minor sexual-assault
victim fails strict scrutiny); see also Press-Enterprise Co. v.
Superior Court, 478 U.S. 1, 8-9 (1986) (recognizing a qualified
First Amendment right of the press and public to attend
preliminary hearings); Richmond Newspapers, Inc. v. Virginia,
448 U.S. 555, 576-77 (1980) (plurality opinion) (holding that
(continued...)
No. 11-1286 31

Branzburg opinion itself suggests some caution in
relying too heavily on the Court’s discussion of a First
Amendment right to gather news and information. See
id. at 703-04 (noting that an expansive judicially adminis-
tered right to gather information would “present
practical and conceptual difficulties of a high order” and
“embark the judiciary on a long and difficult journey”
with an “uncertain destination”). Still, the Court’s observa-
tion that speech and press freedom includes, by implica-
tion, “some protection” for gathering information about
the affairs of government is consistent with the historical
understanding of the First Amendment.
To the founding generation, the liberties of speech
and press were intimately connected with popular sover-
eignty and the right of the people to see, examine, and

7
(...continued)
the First Amendment protects the right of the press and public
to attend criminal trials); In re Cont’l Litig., 732 F.2d 1302,
1308 (7th Cir. 1984) (recognizing a right to attend civil trials);
N.Y. Civil Liberties Union v. N.Y.C. Transit Auth., 652 F.3d 247,
260-61 (2d Cir. 2011) (recognizing a right to attend transit-
authority meetings); Whiteland Woods, L.P. v. Township of
West Whiteland, 193 F.3d 177, 181 (3d Cir. 1999) (recognizing a
right to attend planning-commission meetings).
This is not, strictly speaking, a claim about the qualified
First Amendment right of access to governmental proceedings.
Access is assumed here; the ACLU claims a right to audio
record events and communications that take place in tradi-
tional public fora like streets, sidewalks, plazas, parks, and
other open public spaces.
32 No. 11-1286

be informed of their government. For example, in one of
the most famous eighteenth-century essays on the
freedom of speech, 8 Whig commentator Thomas
Gordon explained:
“That Men ought to speak well of their Governours
is true, while their Governours deserve to be well
spoken of; but to do publick Mischief, without hearing
of it, is only the Prerogative and Felicity of Tyranny:
A free People will be shewing that they are so, by
their Freedom of Speech.
The Administration of Government, is nothing
else but the Attendance of the Trustees of the People
upon the Interest and Affairs of the People: And as it
is the Part and Business of the People, for whose
Sake alone all publick Matters are, or ought to be
transacted, to see whether they be well or ill trans-
acted; so it is the Interest, and ought to be the Ambi-
tion, of all honest Magistrates, to have their Deeds
openly examined, and publickly scann’d.”

8
See, e.g., B ERNARD B AILYN , T HE I DEOLOGICAL O RIGINS OF THE
A MERICAN R EVOLUTION 36 (1967) (observing that Cato’s Letters,
which included Gordon’s essay on the freedom of speech,
were “republished entire or in part again and again . . . and
referred to repeatedly in the pamphlet literature, . . . rank[ing]
with the treatises of Locke as the most authoritative state-
ment of the nature of political liberty and above Locke as an
exposition of the social sources of the threats it faced”); Donald
S. Lutz, The Relative Influence of European Writers on Late
Eighteenth-Century American Political Thought, 78 A M . P OL .
S CI. R EV . 189, 194 (1984).
No. 11-1286 33

Silence Dogood No. 8, T HE N EW-E NGLAND C OURANT
(Boston), July 9, 1722, reprinted in 1 T HE P APERS OF
B ENJAMIN F RANKLIN 28 (Leonard W. Labaree et al. eds.,
1959) (quoting Cato’s Letter No. 15). Other colonial writers
“stressed the necessity and right of the people to be
informed of their governors’ conduct so as to shape their
own judgments on ‘Publick Matters’ and be qualified to
choose their representatives.” L EONARD W. L EVY, E MER-
GENCE OF A F REE P RESS 134 (2004). The Virginia General
Assembly objected to the infamous Sedition Act of 1798
in part “because it is levelled against that right of freely
examining public characters and measures, and of free com-
munication among the people thereon.” Virginia Resolu-
tions of 1798, reprinted in 17 T HE P APERS OF JAMES
M ADISON 189-90 (David B. Mattern et al. eds., 1991)
(emphasis added). In a subsequent report, James Madison
explained that the Sedition Act had “repressed that
information and communication among the people, which
is indispensable to the just exercise of their electoral
rights.” Virginia Report of 1800, reprinted in 17 T HE
P APERS OF JAMES M ADISON 343 (emphasis added).
This understanding prevailed at the time the Four-
teenth Amendment was ratified. In his famous 1868
treatise on constitutional law, Thomas Cooley explained
that a foremost purpose of the Constitution’s guarantee
of speech and press liberty is
to secure the[] right to a free discussion of public
events and public measures, and to enable every
citizen at any time to bring the government and any
person in authority to the bar of public opinion by any
34 No. 11-1286

just criticism upon their conduct in the exercise of the
authority which the people have conferred upon them.
To guard against repressive measures by the several
departments of government, by means of which
persons in power might secure themselves and
their favorites from just scrutiny and condemnation,
was the general purpose . . . . The evils to be
guarded against were not the censorship of the press
merely, but any action of the government by means
of which it might prevent such free and general dis-
cussion of public matters as seems absolutely
essential to prepare the people for an intelligent
exercise of their rights as citizens.
T HOMAS M. C OOLEY, A T REATISE ON THE C ONSTITUTIONAL
L IMITATIONS 421-22 (1868) (emphasis added); see also
Eugene Volokh, Freedom for the Press as an Industry, or for
the Press as a Technology? From the Framing to Today, 160
U. P A. L. R EV. 459 (2012) (collecting sources from the
framing to the modern era); see generally A KHIL R EED
A MAR, T HE B ILL OF R IGHTS 20-26, 231-45 (1996) (explaining
the structural role of speech and press rights based on
founding-era and Reconstruction history).
In short, the eavesdropping statute restricts a medium
of expression—the use of a common instrument of com-
munication—and thus an integral step in the speech
process. As applied here, it interferes with the gathering
and dissemination of information about government
officials performing their duties in public. Any way
you look at it, the eavesdropping statute burdens
speech and press rights and is subject to heightened First
Amendment scrutiny.
No. 11-1286 35

The First Circuit agrees. In Glik v. Cunniffe, 655 F.3d
78, 79-81 (1st Cir. 2011), the court considered a claim
of qualified immunity in a damages suit brought by a
bystander who was arrested for using his cell phone
to record police officers making an arrest on the
Boston Common. The bystander alleged that the officers
violated his rights under the First Amendment; the
First Circuit rejected the officers’ defense of qualified
immunity. Id. The court framed the issue this way:
“[I]s there is a constitutionally protected right to
videotape police carrying out their duties in public?” Id.
at 82. The court held that “[b]asic First Amendment
principles, along with case law from this and other
circuits, answer that question unambiguously in the
affirmative.” 9 Id. The court went on to conclude that
the right to record the police was clearly established,
resting its conclusion primarily on the Supreme Court’s
observations about the right to gather and disseminate
information about government: “Gathering information
about government officials in a form that can readily
be disseminated to others serves a cardinal First Amend-
ment interest in protecting and promoting ‘the free dis-
cussion of governmental affairs.’ ” Id. (quoting Mills
v. Alabama, 384 U.S. 214, 218 (1966)).1 0

9
The claimant in Glik recorded the arrest because he thought
the police were using excessive force. But the court’s First
Amendment ruling was not limited to “defensive” recording
to preserve evidence of wrongdoing, as our dissenting col-
league suggests. Dissent at 54.
10
On the other hand, the Third Circuit resolved a similar
(continued...)
36 No. 11-1286

Before moving on, a few words about challenges to
generally applicable laws. As we have noted, the
Supreme Court’s decision in Branzburg rested in part on
the principle that a generally applicable law will not
violate the First Amendment simply because its applica-
tion has an incidental effect on speech or the press. 408

10
(...continued)
qualified-immunity question differently in Kelly v. Borough of
Carlisle, 622 F.3d 248 (3d Cir. 2010), which involved a First
Amendment claim by a plaintiff who was arrested under the
Pennsylvania wiretapping statute for recording a police
officer during a traffic stop. Although the Third Circuit found
some support for a First Amendment right to record police
officers performing their duties in public in some situations,
id. at 260-62, the court held that “there [i]s insufficient case
law establishing a right to videotape police officers during
a traffic stop to put a reasonably competent officer on ‘fair
notice’ that seizing a camera or arresting an individual for
videotaping police during the stop would violate the First
Amendment,” id. at 262.
The First Circuit’s decision in Glik aligns with authority
from the Eleventh Circuit and with the weight of district-
court decisions. See Smith v. City of Cumming, 212 F.3d 1332, 1333
(11th Cir. 2000) (summarily recognizing “a First Amendment
right, subject to reasonable time, manner and place restrictions,
to photograph or videotape police conduct”); see also Seth
F. Kreimer, Pervasive Image Capture and the First Amendment:
Memory, Discourse, and the Right to Record, 159 U. P A . L. R EV .
335, 368 n.113 (2011) (collecting district-court cases).
This case does not, of course, raise a question of qualified
immunity; we do not need to take sides in the circuit split
in order to decide this case.
No. 11-1286 37

U.S. at 682; see also Cohen v. Cowles Media Co., 501 U.S.
663, 669 (1991) (“[G]enerally applicable laws do not
offend the First Amendment simply because their enforce-
ment . . . has incidental effects on [the] ability to gather
and report the news.”); Arcara v. Cloud Books, Inc., 478
U.S. 697, 707 (1986) (“[T]he First Amendment is not
implicated by the enforcement of a public health regula-
tion of general application against the physical premises
in which respondents happen to sell books.”).
It’s important to note that the legal sanction at issue
in Branzburg—enforcement of a grand-jury sub-
poena—was not aimed at the exercise of speech or press
rights as such. Likewise Cohen involved a claim by two
newspapers for a special First Amendment immunity
from damages liability for breach of a promise to keep
a source’s identity confidential. As in Branzburg, the
Court rejected the claim of special press immunity and
upheld the damages award against the newspapers. The
Court observed that the doctrine of promissory estoppel
is generally applicable and the “enforcement of such
general laws against the press is not subject to stricter
scrutiny than would be applied to enforcement against
other persons or organizations.” Cohen, 501 U.S. at 670.
Branzburg and Cohen thus stand for the unremarkable
proposition that the press does not enjoy a special con-
stitutional exemption from generally applicable laws.
Similarly, in Arcara the Court upheld a court order
shutting down an adult bookstore pursuant to a state
nuisance statute authorizing the closure of premises
where prostitution is ongoing. The Court held that
38 No. 11-1286

“the First Amendment is not implicated by the enforce-
ment of a public health regulation of general application
against the physical premises in which respondents
happen to sell books.” 478 U.S. at 707. The Court noted,
however, that it would be a different case if “the
‘nonspeech’ which drew sanction was intimately related
to expressive conduct protected under the First Amend-
ment.” Id. at 706 n.3. Instead, the “nonspeech” that
was subject to general public-health regulation in
Arcara—operating an establishment where prostitution
is carried on—“bears absolutely no connection to any
expressive activity,” notwithstanding that the establish-
ment is also a bookstore. Id. at 707 n.3.
On the other hand, in Barnes v. Glen Theatre, Inc., 501
U.S. 560 (1991), the Court applied First Amendment
scrutiny to Indiana’s public-indecency statute as applied
to establishments that offer nude dancing. The Court
observed that “nude dancing of the kind sought to be
performed here is expressive conduct within the outer
perimeters of the First Amendment, though we view it
as only marginally so.” Id. at 566. Applying the inter-
mediate standard of review established in United States
v. O’Brien, 391 U.S. 367, 376-77 (1968), the Court upheld
Indiana’s modest requirement that dancers wear a modi-
cum of clothing (“pasties” and “G-strings”) because
that requirement served “a substantial government
interest in protecting order and morality,” Barnes, 501
U.S. at 569, and was “the bare minimum necessary to
achieve the State’s purpose,” id. at 572.
These cases illustrate the point that “enforcement of
a generally applicable law may or may not be subject to
No. 11-1286 39

heightened scrutiny under the First Amendment.”
Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 640 (1994);
see also Food Lion, Inc. v. Capital Cities/ABC, Inc., 194 F.3d
505, 521-22 (4th Cir. 1999). When the expressive element
of an expressive activity triggers the application of a
general law, First Amendment interests are in play.
On the other hand, when “speech” and “nonspeech”
elements are combined, and the “nonspeech” element
(e.g., prostitution) triggers the legal sanction, the
incidental effect on speech rights will not normally raise
First Amendment concerns. See Eugene Volokh, Speech
as Conduct, Generally Applicable Laws, Illegal Courses of
Conduct, “Situation-Altering Utterances,” and the Uncharted
Zones, 90 C ORNELL L. R EV. 1277, 1278-93 (2005).
The Illinois eavesdropping statute may or may not be
a law of general applicability; as we have noted, it
contains a number of exemptions. Either way, it should
be clear by now that its effect on First Amendment inter-
ests is far from incidental. To the contrary, the statute
specifically targets a communication technology; the use
of an audio recorder—a medium of expression—triggers
criminal liability. The law’s legal sanction is directly
leveled against the expressive element of an expressive
activity. As such, the statute burdens First Amendment
rights directly, not incidentally.

2. Content Based or Content Neutral?
The ACLU contends that the eavesdropping statute
is subject to strict scrutiny because it restricts speech
based on its content and discriminates among speakers.
40 No. 11-1286

The First Amendment “does not countenance govern-
ment control over the content of messages expressed
by private individuals.” Turner, 512 U.S. at 641. This is a
“bedrock principle” of First Amendment law. Snyder v.
Phelps, 131 S. Ct. 1207, 1219 (2011) (quotation marks
omitted). “[A]s a general matter, the First Amendment
means that government has no power to restrict
expression because of its message, its ideas, its subject
matter, or its content.” Ashcroft v. ACLU, 535 U.S. 564,
573 (2002) (quotation marks omitted). Laws that
restrict speech based on its content are “presumptively
invalid, and the Government bears the burden to rebut
that presumption.” United States v. Stevens, 130 S. Ct.
1577, 1584 (2010) (quotation marks omitted).
Accordingly, regulatory measures “that suppress,
disadvantage, or impose differential burdens upon
speech because of its content” are subject to strict scru-
tiny. Turner, 512 U.S. at 642. “In contrast, regulations that
are unrelated to the content of speech are subject to
an intermediate level of scrutiny . . . because in most
cases they pose a less substantial risk of excising certain
ideas or viewpoints from the public dialogue.” Id.
(citation omitted). Although the line between content-
neutral and content-based laws is sometimes hard to
draw, “the ‘principal inquiry in determining content
neutrality . . . is whether the government has adopted a
regulation of speech because of [agreement or] disagree-
ment with the message it conveys.’ ” Id. (alterations
in original) (quoting Ward v. Rock Against Racism, 491
U.S. 781, 791 (1989)). Stated differently, “laws that by
their terms distinguish favored speech from disfavored
No. 11-1286 41

speech on the basis of the ideas or views expressed
are content based.” Id. at 643.
The eavesdropping statute is content neutral on its
face. It does not target any particular message, idea,
or subject matter. The ACLU argues that the eavesdrop-
ping statute should be treated as a content-based restric-
tion because its enforcement requires an examination
of the audio recording to determine whether a violation
has occurred. This argument misunderstands the First
Amendment requirement of content neutrality. A law is
not considered “content based” simply because a court
must “look at the content of an oral or written statement
in order to determine whether a rule of law applies.”
Hill v. Colorado, 530 U.S. 703, 721 (2000).
The ACLU also argues that the eavesdropping
statute discriminates among speakers by allowing “uni-
formed on-duty police at their discretion and without
court approval to make virtually any audio recording
of their conversations with civilians, while forbidding
civilians from making virtually any audio recording of
those same conversations.” Here the ACLU relies on the
well-established principle that
the Government may commit a constitutional wrong
when by law it identifies certain preferred speakers.
By taking the right to speak from some and giving it
to others, the Government deprives the disad-
vantaged person or class of the right to use speech to
strive to establish worth, standing, and respect for
the speaker’s voice.
42 No. 11-1286

Citizens United, 130 S. Ct. at 899. But this kind of content-
based discrimination arises when the government dis-
criminates among private speakers, not when it
facilitates its own speech. For example, a governmental
agency that records its own meetings but bars members
of the public from doing so has not preferred one class
of private speakers over another, although other First
Amendment concerns might arise. Here, the exemption
for law-enforcement officers is constitutionally insig-
nificant.11
The exemption for the media may be another matter,
however. As we have noted, the eavesdropping statute
exempts live broadcasts or recordings made for later
broadcast “by radio, television, or otherwise” of “any
function where the public is in attendance and the con-
versations are overheard incidental to the main purpose
for which such broadcasts are then being made.” 720
ILL. C OMP. S TAT. 5/14-3(c). This exemption appears to
be aimed at media coverage of public events in which
conversations are captured without consent as an in-
cidental consequence of broadcasting the event itself,
or recording it for later broadcast. This exemption for
broadcasting may amount to discrimination among
private speakers, though perhaps it’s broad enough to
cover recordings made by individuals as well as the

11
The ACLU also suggests that the statute’s enhanced penalty
for recording a police officer, prosecutor, or judge amounts
to content-based discrimination. This argument is off point.
The ACLU is not seeking an injunction against the penalty
enhancement.
No. 11-1286 43

institutional press. See Turner, 512 U.S. at 659 (“Regulations
that discriminate among media, or among different
speakers within a single medium, often present serious
First Amendment concerns.”). We need not decide the
effect of this exemption here. The ACLU does not
mention it, probably because the recordings at issue in
this case are not limited to those that are “incidental”
to recording a public event.
In the end, we think it unlikely that strict scrutiny
will apply. But there is no need to resolve the matter
here. The ACLU’s challenge is likely to succeed under
any of the less rigorous standards of scrutiny that
apply to restrictions on speech. At the very least, the
State’s Attorney will have to justify this application of the
eavesdropping statute under some form of intermediate
scrutiny.

3. The Eavesdropping Statute Likely Fails Inter-
mediate Scrutiny
The Supreme Court uses several variations of inter-
mediate scrutiny in its free-speech cases. When an inter-
mediate standard of review applies in the campaign-
finance context—for example, when the Court reviews
limits on contributions to candidates—the challenged
law must be “closely drawn to serve a sufficiently impor-
tant interest . . . .” Ariz. Free Enter. Club, 131 S. Ct. at
2817 (internal quotation marks omitted); see also Doe v.
Reed, 130 S. Ct. 2811, 2818 (2010).
In commercial-speech cases, the government must
establish that the challenged statute “directly advances
44 No. 11-1286

a substantial governmental interest and that the
measure is drawn to achieve that interest.” Sorrell v.
IMS Health Inc., 131 S. Ct. 2653, 2667-68 (2011). Stated
differently, intermediate scrutiny in this context requires
“a ‘fit’ between the legislature’s ends and the means
chosen to accomplish those ends, . . . a fit that is not
necessarily perfect, but reasonable; that represents not
necessarily the single best disposition but one whose
scope is in proportion to the interest served.” Bd. of Trs.
of State Univ. of N.Y. v. Fox, 492 U.S. 469, 480 (1989) (cita-
tions and internal quotation marks omitted).
Under the Court’s speech-forum doctrine, a regulatory
measure may be permissible as a “time, place, or manner”
restriction if it is “ ‘justified without reference to the
content of the regulated speech, . . . narrowly tailored to
serve a significant governmental interest, . . . and . . .
leave[s] open ample alternative channels for communica-
tion of the information.’ ” Ward, 491 U.S. at 791 (quoting
Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293
(1984)).
Though stated in different terms, these intermediate-
scrutiny standards share certain essential elements in
common. All require (1) content neutrality (content-
based regulations are presumptively invalid); (2) an
important public-interest justification for the challenged
regulation; and (3) a reasonably close fit between the
law’s means and its ends. This last requirement means
that the burden on First Amendment rights must not
be greater than necessary to further the important gov-
ernmental interest at stake. See Fox, 492 U.S. at 480;
No. 11-1286 45

Ward, 491 U.S. at 799; see also O’Brien, 391 U.S. at 376-77
(stating an alternative formulation of intermediate scru-
tiny).
As we have explained, the eavesdropping statute prob-
ably satisfies the requirement of content neutrality. As
applied here, however, it very likely fails the rest of
the test. The State’s Attorney defends the law as neces-
sary to protect conversational privacy. This is easily an
important governmental interest. Bartnicki v. Vopper, 532
U.S. 514, 532 (2001) (“Privacy of communication is an
important interest . . . .”). Indeed, the protection of per-
sonal conversational privacy serves First Amendment
interests because “fear of public disclosure of private
conversations might well have a chilling effect on
private speech.” Id. at 533.
At common law, actionable invasion of privacy takes
several forms: (1) an unreasonable intrusion upon the
seclusion of another; (2) appropriation of another’s name
or likeness; (3) unreasonable publicity given to another’s
private life; and (4) publicity that unreasonably places
another in a false light before the public. R ESTATEMENT
(SECOND) OF T ORTS § 652A; Wolfe v. Schaefer, 619 F.3d 782,
784 (7th Cir. 2010); Desnick v. Am. Broad. Cos., 44 F.3d
1345, 1353 (7th Cir. 1995); Haynes v. Alfred A. Knopf, Inc., 8
F.3d 1222, 1229 (7th Cir. 1993). In Fourth Amendment
law, there is “no talisman that determines in all cases
those privacy expectations that society is prepared to
accept as reasonable.” O’Connor v. Ortega, 480 U.S. 709,
715 (1987) (plurality opinion); see also Orin S. Kerr, Four
Models of Fourth Amendment Protection, 60 STAN. L. R EV.
46 No. 11-1286

503 (2007) (discussing different understandings of pri-
vacy). But surreptitiously accessing the private communi-
cations of another by way of trespass or nontrespas-
sory wiretapping or use of an electronic listening device
clearly implicates recognized privacy expectations. See
United States v. Jones, 132 S. Ct. 945, 945-52 (2012); Bartnicki,
532 U.S. at 526; Katz v. United States, 389 U.S. 347, 351-
52 (1967).
Simply put, these privacy interests are not at issue
here. The ACLU wants to openly audio record police
officers performing their duties in public places and
speaking at a volume audible to bystanders. Communica-
tions of this sort lack any “reasonable expectation
of privacy” for purposes of the Fourth Amendment. See
Katz, 389 U.S. at 351 (“What a person knowingly ex-
poses to the public . . . is not a subject of Fourth Amend-
ment protection.”); id. at 361 (Harlan, J., concurring)
(“[C]onversations in the open would not be protected
against being overheard, for the expectation of privacy
under the circumstances would be unreasonable.”).
Dissemination of these communications would not be
actionable in tort. See R ESTATEMENT (S ECOND ) OF T ORTS
§§ 652B, 652D (explaining the elements of the different
invasion-of-privacy torts).1 2

12
Nothing we have said here endangers the tort law of privacy,
as the dissent suggests. Dissent at 59-60. A tortious invasion of
privacy occurs when a person “gives publicity to a matter
concerning the private life of another . . . if the matter pub-
licized is of a kind that (a) would be highly offensive to a
(continued...)
No. 11-1286 47

Of course, the First Amendment does not prevent
the Illinois General Assembly from enacting greater
protection for conversational privacy than the common-
law tort remedy provides. Nor is the legislature limited
to using the Fourth Amendment “reasonable expectation
of privacy” doctrine as a benchmark. But by legislating
this broadly—by making it a crime to audio record any
conversation, even those that are not in fact private—the
State has severed the link between the eavesdropping
statute’s means and its end. Rather than attempting to
tailor the statutory prohibition to the important goal
of protecting personal privacy, Illinois has banned
nearly all audio recording without consent of the par-
ties—including audio recording that implicates no
privacy interests at all.
The ACLU’s proposed audio recording will be other-
wise lawful—that is, not disruptive of public order or
safety, and carried out by people who have a legal right
to be in a particular public location and to watch and
listen to what is going on around them. The State’s At-
torney concedes that the ACLU’s observers may
lawfully watch and listen to the officers’ public communi-
cations, take still photographs, make video recordings
with microphones switched off, or take shorthand notes
and transcribe the conversations or otherwise recon-

12
(...continued)
reasonable person, and (b) is not of legitimate concern to the public.”
R ESTATEMENT (S ECOND ) OF T ORTS § 652D (emphasis added).
The communications at issue here are not of this kind.
48 No. 11-1286

struct the dialogue later. The ACLU may post all of this
information on the internet or forward it to news
outlets, all without violating the Illinois eavesdropping
statute. The State’s Attorney has not identified a sub-
stantial governmental interest that is served by ban-
ning audio recording of these same conversations.
We acknowledge the difference in accuracy and
immediacy that an audio recording provides as com-
pared to notes or even silent videos or transcripts. But
in terms of the privacy interests at stake, the difference
is not sufficient to justify criminalizing this particular
method of preserving and publishing the public com-
munications of these public officials.
The State’s Attorney insists that the broad reach of
the statute is necessary to “remove[] incentives for inter-
ception of private conversations and minimize[] the
harm to persons whose conversations have been
illegally intercepted.” At the risk of repeating ourselves,
this case has nothing to do with private conversations
or surreptitious interceptions. We accept Judge Posner’s
point that “private talk in public places is common.”
Dissent at 64. But the communications in question here
do not fall into this category; they are not conversations
that carry privacy expectations even though uttered
in public places. Moreover, the ACLU plans to record
openly, thus giving the police and others notice that
they are being recorded.1 3

13
We are not suggesting that the First Amendment protects
only open recording. The distinction between open and con-
(continued...)
No. 11-1286 49

The State’s Attorney also argues that the statute en-
deavors to “[1.] encourage that civilians candidly speak
with law enforcement, including those conversations
conditioned on confidentiality; [2.] limit opportunities
of the general public from gaining access to matters of
national and local security; and [3.] reduce the likelihood
of provoking persons during officers’ mercurial encoun-
ters.” These interests are not threatened here. Anyone
who wishes to speak to police officers in confidence
can do so; private police-civilian communications are
outside the scope of this case. Police discussions about
matters of national and local security do not take place
in public where bystanders are within earshot; the
State’s Attorney has made no effort to connect this law-
enforcement concern to the communications at issue
here. It goes without saying that the police may take
all reasonable steps to maintain safety and control,
secure crime scenes and accident sites, and protect the
integrity and confidentiality of investigations. While
an officer surely cannot issue a “move on” order to a
person because he is recording, the police may order
bystanders to disperse for reasons related to public
safety and order and other legitimate law-enforcement
needs. See, e.g., Colten v. Kentucky, 407 U.S. 104, 109 (1972)
(rejecting a First Amendment right to congregate on

13
(...continued)
cealed recording, however, may make a difference in
the intermediate-scrutiny calculus because surreptitious re-
cording brings stronger privacy interests into play. See
Bartnicki v. Vopper, 532 U.S. 514, 529 (2001).
50 No. 11-1286

the side of a highway and “observe the issuance of a
traffic ticket”). Nothing we have said here immunizes
behavior that obstructs or interferes with effective
law enforcement or the protection of public safety.
Because the eavesdropping statute is not closely
tailored to the government’s interest in protecting conver-
sational privacy, we need not decide whether it leaves
open adequate alternative channels for this kind of
speech (assuming that this factor—an aspect of speech-
forum analysis—even applies in this context). See Saieg
v. City of Dearborn, 641 F.3d 727, 740 (6th Cir. 2011)
(“The requirements for a time, place, and manner re-
striction are conjunctive.” (citing Watchtower Bible & Tract
Soc’y v. Village of Stratton, 536 U.S. 150, 168-69 (2002))).
We note, however, that audio and audiovisual re-
cording are uniquely reliable and powerful methods
of preserving and disseminating news and information
about events that occur in public. Their self-authenticating
character makes it highly unlikely that other methods
could be considered reasonably adequate substitutes.
Before closing, a brief response to a couple of points
in the dissent. Our decision will not, as Judge Posner
suggests, “cast[] a shadow over the electronic privacy
statutes of other states.” Dissent at 54. As we have ex-
plained, the Illinois statute is a national outlier. See Alder-
man, Police Privacy in the iPhone Era?, supra note 4, at 533-45
(collecting state statutes). Most state electronic privacy
statutes apply only to private conversations; that is, they
contain (or are construed to include) an expectation-of-
privacy requirement that limits their scope to conversa-
No. 11-1286 51

tions that carry a reasonable expectation of privacy.
Others apply only to wiretapping, and some ban only
surreptitious recording. Id. Indeed, the California statute
discussed in the dissent is explicitly limited to “con-
fidential communications,” a term specifically defined to
exclude the kind of communications at issue here. If the
Illinois statute contained a similar limitation, the link to
the State’s privacy justification would be much stronger.
The dissent also takes us to task for giving insufficient
consideration to the privacy interests of civilians who
communicate with the police and for failing to grasp the
extent to which people “say things in public that they
don’t expect others around them to be listening to, let
alone recording for later broadcasting.” Dissent at 63. To
the contrary, we have acknowledged the importance of
conversational privacy and heeded the basic distinction
drawn in Katz that some conversations in public places
implicate privacy and others do not. See Katz, 389
U.S. at 351. Again, the privacy interests that may
justify banning audio recording are not limited to
those that the Fourth Amendment secures against gov-
ernmental intrusion. But the Illinois eavesdropping
statute obliterates the distinction between private and
nonprivate by criminalizing all nonconsensual audio
recording regardless of whether the communication is
private in any sense. 720 I LL . C OMP. S TAT. 5/14-1(d).
If protecting privacy is the justification for this law,
then the law must be more closely tailored to serve that
interest in order to avoid trampling on speech and press
rights.
52 No. 11-1286

For these reasons, we conclude that the ACLU has
a strong likelihood of success on the merits of its First
Amendment claim. The Illinois eavesdropping statute
restricts an expressive medium used for the preserva-
tion and dissemination of information and ideas. On
the factual premises of this case, the statute does not
serve the important governmental interest of protecting
conversational privacy; applying the statute in the cir-
cumstances alleged here is likely unconstitutional.
Accordingly, we reverse and remand with the
following instructions: The district court shall reopen
the case and allow the amended complaint; enter a pre-
liminary injunction enjoining the State’s Attorney from
applying the Illinois eavesdropping statute against the
ACLU and its employees or agents who openly
audio record the audible communications of law-enforce-
ment officers (or others whose communications are inci-
dentally captured) when the officers are engaged in
their official duties in public places; and conduct such
further proceedings as are consistent with this opinion.
REVERSED AND REMANDED WITH INSTRUCTIONS.
No. 11-1286 53

POSNER, Circuit Judge, dissenting. The American Civil
Liberties Union appeals from the denial of a preliminary
injunction in its suit against the Cook County State’s
Attorney (that is, the “D.A.” of Cook County, Illinois) to
invalidate the Illinois Eavesdropping Act as a viola-
tion of freedom of speech (more precisely, freedom to
publish or otherwise disseminate other people’s speech).
I would affirm the district court.
The Act criminalizes “knowingly and intentionally
us[ing] an eavesdropping device for the purpose of
hearing or recording all or any part of any conversation”
without “the consent of all of the parties to such conversa-
tion.” 720 ILCS 5/14-2(a)(1). My colleagues have decided
to reverse, and to order the entry of a preliminary injunc-
tion against enforcement of the Eavesdropping Act.
But why a preliminary injunction? The opinion gives no
indication of what argument or evidence presented
on remand might allow the district court again to
uphold the Act.
The invalidation of a statute on constitutional grounds
should be a rare and solemn judicial act, done with reluc-
tance under compulsion of clear binding precedent or
clear constitutional language or—in the absence of
those traditional sources of guidance—compelling evi-
dence, or an overwhelming gut feeling, that the statute
has intolerable consequences. The law invalidated
today is not an outdated one left on the books by legis-
lative inertia, like many of the laws invalidated by
the Supreme Court in famous cases such as Griswold v.
Connecticut, 381 U.S. 479 (1965). In its present form it
54 No. 11-1286

dates only from 1994. It is stricter than provisions found
in the laws governing electronic eavesdropping in
most other states because it requires both parties to
consent to a recording of their conversation. Maybe it’s
too strict in forbidding nonconsensual recording
even when done in defense of self or others, as when
the participant in a conversation records it in order to
create credible evidence of blackmail, threats, other
forms of extortion, or other unlawful activity, as in Glik
v. Cunniffe, 655 F.3d 78 (1st Cir. 2011). But that feature
of the statute is irrelevant. The ACLU insists on, and
the majority opinion endorses, the right to record con-
versations to which police officers are parties even if
no party consents to the recording, as long as the
officers are performing public duties (as distinct from
talking with one another on a private topic) in a public
place and speaking loudly enough to be heard by a
person who doesn’t have special equipment for
amplifying sound—in other words, a person standing
nearby.
Our ruling casts a shadow over electronic privacy
statutes of other states as well, to the extent that they can
be interpreted to require the consent of at least one party
to a conversation to record it even though the conversa-
tion takes place that in a public place, if the conversa-
tion could nevertheless reasonably be thought private by
the parties. The statutes of several states are so open-
ended that they could easily be found invalid under
the approach taken in the majority opinion. See Alaska
Stat. Ann. § 42.20.310; Ark. Code. Ann. § 5-60-120;
Cal. Penal Code § 632(c); Mich. Comp. Laws Ann.
No. 11-1286 55

§ 750.539c; N.D. Cent. Code. Ann. § 12.1-15-02. The Cali-
fornia statute is illustrative. It states that “the term ‘con-
fidential communication’ includes any communica-
tion carried on in circumstances as may reasonably indicate
that any party to the communication desires it to
be confined to the parties thereto, but excludes a com-
munication made in a public gathering or in any legisla-
tive, judicial, executive or administrative proceeding
open to the public, or in any other circumstance in
which the parties to the communication may reasonably
expect that the communication may be overheard or
recorded.” The words are clear, the meaning is clear,
but the application is unclear. Should a conversation in
a public place, but intended to be private, be thought a
“communication that any party desires to be confined
to the parties”? It is both intended to be private
and remote from a communication made in a “public
gathering,” a term that from its placement connotes a
public meeting of some sort. But what of the exclusion
of private communications that the parties “may rea-
sonably expect . . . may be overheard or recorded”? That
fogs the issue of which private communications are
protected. To read the statute literally would exclude
all private communications, for any private communica-
tion can be overheard and recorded, even if it is a con-
versation in a closed room.
A number of state privacy statutes tee off from
the statement in Katz v. United States, 389 U.S. 347, 351
(1967), that “what a person knowingly exposes to the
public, even in his own home or office, is not a subject of
Fourth Amendment protection. But what he seeks to
56 No. 11-1286

preserve as private, even in an area accessible to the
public, may be constitutionally protected.” See, e.g., Fla.
Stat. § 934.02(2); Ohio Rev. Code Ann. § 2933.51(B);
Texas Penal Code § 16.02(b)(1), incorporating Tex. Code
Crim. P. art. 18.20 § 1(1); cf. 18 U.S.C. § 2510(2). The
police in Katz had recorded the defendant’s phone call,
made in a public telephone booth, by secretly fastening
a microphone to the booth, and the Court held that
the phone call violated the Fourth Amendment because
the police had no warrant. Suppose the telephone
booth had had no door, or that though it had a door the
booth was not soundproof and someone standing five
feet away could hear the conversation. Or suppose a
police officer is talking in a low voice to a crime victim
on a crowded sidewalk; there are people within
earshot but the conversants reasonably assume that no
one is listening, though they notice someone looking at
his cell phone and the recorder in the cell phone might
be turned on. We can’t predict the impact of today’s
decision on the laws of most other states.
The ACLU particularly wants to record conversations
to which a police officer is a party during demonstrations
in public places, such as the march protesting the start
of the second Iraq war that was before us in Vodak v. City
of Chicago, 639 F.3d 738 (7th Cir. 2011). That is its par-
ticular desire, but if its constitutional argument is
correct, anyone has a constitutional right to record all
such conversations, not just groups like the ACLU,
and journalists, because neither the ACLU nor the
press has greater First Amendment rights than other
No. 11-1286 57

members of the public. Citizens United v. Federal Election
Commission, 130 S. Ct. 876, 905-06 (2010); Lovell v. City of
Griffin, 303 U.S. 444, 452 (1938); see generally Eugene
Volokh, “Freedom for the Press as an Industry, or for
the Press as a Technology? From the Framing to Today,”
160 U. Pa. L. Rev. 459 (2012). Nor would the right be
limited to political demonstrations; it would extend to
all audible police conversations in public places,
whether outdoors on sidewalks and in parks or indoors
in the lobbies or other public spaces of courthouses
and other government buildings.
Judges asked to affirm novel “interpretations” of the
First Amendment should be mindful that the constitu-
tional right of free speech, as construed nowadays, is
nowhere to be found in the Constitution. 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). A speaker could
be prosecuted for seditious libel, for blasphemy, and for
much other reprobated speech besides, but in a prosecu-
tion he would at least have the protection of trial by
jury, which he would not have if hauled before a censor-
ship board; and his speech or writing would not have
been suppressed, which is what censorship boards do.
Protection against censorship was the only protection
that the amendment was understood to create. Patterson
v. Colorado, 205 U.S. 454, 461-62 (1907) (Holmes, J.);
Blue Canary Corp. v. City of Milwaukee, 251 F.3d 1121, 1123
(7th Cir. 2001); Akhil Reed Amar, The Bill of Rights: Creation
58 No. 11-1286

and Reconstruction 23-24 (1998); cf. 4 William Blackstone,
Commentaries on the Laws of England 150-53 (1769).
The limitation of the amendment to Congress, and
thus to federal restrictions on free speech (the First Amend-
ment does not apply to state action), and to censorship
is the original understanding. Judges have strayed so
far from it that further departures should be under-
taken with caution. Even today, with the right to free
speech expanding in all directions, it remains a partial,
a qualified, right. To make it complete would render
unconstitutional defamation law, copyright law, trade
secret law, and trademark law; tort liability for wire-
tapping, other electronic eavesdropping, and publicly
depicting a person in a “false light”; laws criminalizing
the publication of military secrets and the dissemination
of child pornography; conspiracy law (thus including
much of antitrust law); prohibitions of criminal solicita-
tion, threats and fighting words, securities fraud, and
false advertising of quack medical remedies; the regula-
tion of marches, parades, and other demonstrations
whatever their objective; limitations on free speech
in prisons; laws limiting the televising of judicial pro-
ceedings; what little is left of permitted regulation
of campaign expenditures; public school disciplining of
inflammatory or disruptive student speech; the attorney-
client, spousal, and physician-patient privileges in cases
in which an attorney or spouse or physician would like
to speak but is forbidden by the privilege to do so;
laws making medical records confidential; and prohibi-
tions against the public disclosure of jurors’ names in
cases in which jurors might be harassed. All these legal
No. 11-1286 59

restrictions of free speech are permitted (some because
they may actually increase the amount of speech, a
point I’ll come back to). The question in this case is
whether a state, to protect both privacy and public
safety, should be allowed in addition to forbid the re-
cording of conversations between police officers and
members of the public in a public place unless both
parties to the conversation consent to being recorded
for posterity.
A person who is talking with a police officer on duty
may be a suspect whom the officer wants to question;
he may be a bystander whom the police are shooing
away from the scene of a crime or an accident; he may
be an injured person seeking help; he may be a crime
victim seeking police intervention; he may be asking
for directions; he may be arguing with a police officer
over a parking ticket; he may be reporting a traffic acci-
dent. In many of these encounters the person con-
versing with the police officer may be very averse to the
conversation’s being broadcast on the evening news
or blogged throughout the world. In some instances
such publicity would violate the tort right of privacy, a
conventional exception to freedom of speech as I have
noted. Restatement (Second) of Torts §§ 652A, 652D (1977)
(“unreasonable publicity given to [another person’s]
private life”); Wolfe v. Schaefer, 619 F.3d 782, 784 (7th Cir.
2010); Reuber v. Food Chemical News, Inc., 925 F.2d 703, 718-
19 (4th Cir. 1991) (en banc) (“publiciz[ing] private facts
in a highly offensive manner about an issue not of
public concern”); Miller v. Motorola, Inc., 560 N.E.2d 900
60 No. 11-1286

(Ill. App. 1990). This body of law is endangered by
today’s ruling.
Privacy is a social value. And so, of course, is public
safety. 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 communi-
cate effectively with persons whom they speak with in
the line of duty. An officer may freeze if he sees a jour-
nalist recording a conversation between the officer and
a crime suspect, crime victim, or dissatisfied member
of the public. He may be concerned when any stranger
moves into earshot, or when he sees a recording
device (even a cell phone, for modern cell phones are
digital audio recorders) in the stranger’s hand. To
distract police during tense encounters with citizens
endangers public safety and undermines effective law
enforcement.
The majority opinion disclaims any intention of
“immuniz[ing] behavior that obstructs or interferes
with effective law enforcement.” I am not reassured. 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. Today’s ruling
may cause state and federal judicial dockets in Illinois
to swell because it will unwittingly encourage police
officers to shoo away bystanders, on the authority of cases
like Colten v. Kentucky, 407 U.S. 104, 109-10 (1972); cf. City
of Houston v. Hill, 482 U.S. 451, 462 n. 11 (1987); King v.
Ambs, 519 F.3d 607, 613-15 (6th Cir. 2008), when the
No. 11-1286 61

officer wants to have a private conversation in a public
place.
That the Eavesdropping Act, despite its name, does not
punish the bystander who overhears a conversation
without recording it does not have the significance that
the majority opinion gives it. There is an important dif-
ference, well articulated in Justice Harlan’s dissent in
United States v. White, 401 U.S. 745, 787-89 (1971) (footnotes
omitted), between human and mechanical eavesdropping:
The impact of the practice of third-party bugging,
must, I think, be considered such as to undermine
that confidence and sense of security in dealing
with one another that is characteristic of individual
relationships between citizens in a free society. It
goes beyond the impact on privacy occasioned by
the ordinary type of “informer” investigation . . . . The
argument of the plurality opinion, to the effect that
it is irrelevant whether secrets are revealed by
the mere tattletale or the transistor, ignores the dif-
ferences occasioned by third-party monitoring and
recording which insures full and accurate disclosure
of all that is said, free of the possibility of error
and oversight that inheres in human reporting.
Authority is hardly required to support the proposi-
tion that words would be measured a good deal more
carefully and communication inhibited if one sus-
pected his conversations were being transmitted
and transcribed. Were third-party bugging a
prevalent practice, it might well smother that sponta-
neity—reflected in frivolous, impetuous, sacrilegious,
62 No. 11-1286

and defiant discourse—that liberates daily life. Much
off-hand exchange is easily forgotten and one may
count on the obscurity of his remarks, protected by
the very fact of a limited audience, and the
likelihood that the listener will either overlook or
forget what is said, as well as the listener’s inability
to reformulate a conversation without having to
contend with a documented record. All these values
are sacrificed by a rule of law that permits official
monitoring of private discourse limited only by the
need to locate a willing assistant.
The distinction that Justice Harlan drew between an
overheard private conversation recalled from memory
and one that is recorded is something everyone feels—
and feels more acutely in the electronic age than
41 years ago. Walter Kirn, “Little Brother Is Watching,”
New York Times Magazine (Oct. 17, 2010); William
Saletan, “Bugged Naked: Webcams, Sex, and the Death
of Privacy,” Slate (Oct. 1, 2010); William Safire, “To Stop
the Eavesdrop,” New York Times (Dec. 20, 1999). Americans
face new challenges to privacy because of the amount
of personal information stored and publicly accessible
online and the ubiquity of recording devices. Lizette
Alvarez, “Spring Break Gets Tamer as World Watches
Online,” New York Times (March 16, 2012); Jeffrey Rosen,
“The Web Means the End of Forgetting,” New York Times
(July 25, 2010); Jonathan Zittrain, “Privacy 2.0,” 2008 U.
Chi. Legal Forum 65, 81-91. Lacking relevant expertise,
lacking evidence, forced back on intuition, judges
should hesitate to invalidate legislative attempts to
solve these problems.
No. 11-1286 63

Police may have no right to privacy in carrying out
official duties in public. But the civilians they interact
with do. The majority opinion “acknowledge[s] the dif-
ference in accuracy and immediacy that an audio
recording provides as compared to notes or even silent
videos or transcripts” but says that “in terms of the
privacy interests at stake, the difference is not sufficient
to justify criminalizing this particular method of pre-
serving and publishing the public communications of
these public officials” (emphasis in original). The assertion
lacks a supporting argument, and by describing the
recording as a “method of preserving and publishing
the public communications of these public officials”
neglects the fact that the recording will publish and
preserve what the civilians with whom the police are
conversing say, not just what the police say. The further
statement that these “are not conversations that carry
privacy expectations even though uttered in public
places” implies that anything said outdoors is ipso facto
public. Yet people often say things in public that they
don’t expect others around them to be listening to, let
alone recording for later broadcasting, and we are given
no reason to think that this is never the case when
someone complains to a police officer, or otherwise
speaks with one, “in public” in the sense of being in a
place in which there are other people about.
Suppose a police detective meets an informant in a
park and they sit down on a park bench to talk. A crime
reporter sidles up, sits down next to them, takes out
his iPhone, and turns on the recorder. The detective and
the informant move to the next park bench to continue
64 No. 11-1286

their conversation in private. The reporter follows them.
Is this what the Constitution privileges?
It is small consolation to be told by the majority that
“the ACLU plans to record openly, thus giving the
police and others notice that they are being recorded”
(emphasis in original). All the ACLU means is that it
won’t try to hide its recorder from the conversants
whom it wants to record, though since the typical
recorder nowadays is a cell phone it will be hidden in
plain view. A person who doesn’t want his conservation
to be recorded will have to keep a sharp eye out for
anyone nearby holding a cell phone, which in many
urban settings is almost everyone. The ubiquity of re-
cording devices will increase security concerns by dis-
tracting the police.
There is more on the state’s side of this case than
privacy of communications and the effectiveness of law
enforcement—and the more is the same First Amendment
interest that the ACLU says it wants to promote. The
majority opinion concedes that “conversational privacy”
“serves First Amendment interests,” but thinks there
can be no conversational privacy when the conversation
takes place in a public place; it says that “this case
has nothing to do with private conversations.” But
private talk in public places is common, indeed
ubiquitous, because most people spend a lot of their
time in public places; because they rely on their
anonymity and on the limited memory of others to mini-
mize the risk of publication; because public places are
(paradoxically) often more private than private places
No. 11-1286 65

(imagine if detectives could meet with their informants
only in police stations); and because eavesdropping on
strangers is actually rather uncommon because it is
so difficult in most cases to understand a conversa-
tion between strangers. “Anyone who’s overheard con-
versations on the street or in a restaurant knows that
conversations between strangers are often unintelligi-
ble. There is the public language we employ when
talking to strangers and the elliptical private language
that we use when talking to people whom we know.
Strangers need an interpreter . . . .” United States v. Curescu,
674 F.3d 735, 740 (7th Cir. 2012).
I disagree with the majority that “anyone who wishes
to speak to police officers in confidence can do so,” and
“police discussions about matters of national and local
security do not take place in public where bystanders
are within earshot.” Forget national security; the
people who most need police assistance and who most
want their conversations kept private are often the
people least able to delay their conversation until they
reach a private place. If a person has been shot or raped
or mugged or badly injured in a car accident or has wit-
nessed any of these things happening to someone else,
and seeks out a police officer for aid, what sense would
it make to tell him he’s welcome to trot off to the
nearest police station for a cozy private conversation,
but that otherwise the First Amendment gives passersby
the right to memorialize and publish (on Facebook, on
Twitter, on YouTube, on a blog) his agonized plea for
help? And as in our informant example, many of the
persons whom police want to talk to do not want to be
seen visiting police stations.
66 No. 11-1286

Accuracy is a social value, and a recording of a con-
versation provides a more accurate record of the con-
versation than the recollection of the conversants: more
accurate, and also more truthful, since a party to a con-
versation, including a police officer, may lie about what
he heard or said. But on the other side of the balance
are the inhibiting effect of nonconsensual recording of
conversations on the number and candor of conversations
(and hence on values that the First Amendment pro-
tects); the baleful effect on privacy; the negative effect
on law enforcement; and the litigation likely to be en-
gendered by police officers’ shooing away intruders
on their private conversations with citizens. These are
significant social costs, and the majority opinion offers
no basis in fact or history, in theory or practice, in con-
stitutional text or judicial precedent, for weighting
them less heavily than the social value of recorded eaves-
dropping.

5-8-12