SCOTUS Declines to Hear Appeal of 7th Cir. Ruling On Eavesdropping Law

The US Supreme Court has declined to hear an appeal of a 7th Circuit Appellate ruling that the Illinois Eavesdropping Statute violates the First Amendment where it prevents citizens from audio recording police officers when they make otherwise non-confidential or priviledged statements.  As the Chicago Tribune reports, The Seventh Circuit reversed the trial court's holding that prevents the ACLU from amending its complaint as well as directing the trial court to enter a preliminary injunction against the enforcement of the Eavesdropping Statute.  

The Seventh Circuit held that: 

"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 legitimate privacy interests; as applied to the facts alleged here, it likely violates the First Amendment’s free speech and free-press guarantees."

After the State's Attorney's Office filed a motion to dismiss, the ACLU argued that:

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 complaint 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 Amendment 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.

The Seventh Circuit concluded otherwise and reversed, finding that "The district court’s reliance on the “willing speaker” principle gets the doctrine 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.” (citations omitted).

For the First Amendment, the Seventh Circuit stated (in dicta) that: "On the merits the State’s Attorney has staked out an extreme position."

It would be erroneous for an observer to conclude that the US Supreme Court agreed with the ruling, but it does conclude the federal challenges and constrain the State's Attorney's seemingly futile quest to salvage a clearly overly broad law.