Am. Civil Liberties Union of IL v. Alvarez
Justia.com Opinion Summary: An Illinois statute makes it a felony to audio record any part of any conversation unless all parties consent and applies regardless of whether the conversation was intended to be private. The offense is elevated to a class 1 felony, with a possible prison term of 4 to 15 years, if a recorded individual is performing duties as a law-enforcement officer. 720 ILCS 5/14-2(a)(1). Illinois does not prohibit taking silent video of officers performing duties in public. The ACLU has not implemented its planned Chicago police accountability program for fear of prosecution. The district court held that the First Amendment does not protect a right to audio record. The Seventh Circuit reversed and remanded with instructions to enter a preliminary injunction blocking enforcement as applied to recording of the kind at issue. The statute restricts a medium commonly used for communication of information and ideas, triggering First Amendment scrutiny. Any governmental interest in protecting conversational privacy is not implicated when officers are performing duties in public places. 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 law restricts more speech than necessary to protect legitimate privacy interests.
Receive FREE Daily Opinion Summaries by Email
Receive FREE Daily Opinion Summaries by Email
In the United States Court of Appeals For the Seventh Circuit No. 11-1286 A MERICAN C IVIL L IBERTIES U NION OF ILLINOIS, Plaintiff-Appellant, v. A NITA A LVAREZ, Defendant-Appellee. Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 10 C 5235â€”Suzanne B. Conlon, Judge. A RGUED S EPTEMBER 13, 2011â€”D ECIDED M AY 8, 2012 Before P OSNER, S YKES, and H AMILTON, Circuit Judges. S YKES, Circuit Judge. The Illinois eavesdropping statute makes it a felony to audio record â€œall or any part of any conversationâ€ 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 felonyâ€”with a possible prison 2 No. 11-1286 term of four to fifteen yearsâ€”if one of the recorded individuals 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 eavesdropping statute against people who openly record police officers performing their official duties in public. More specifically, the American Civil Liberties Union of Illinois (â€œACLUâ€) challenges the statute as applied to the organizationâ€™s Chicago-area â€œpolice accountability program,â€ which includes a plan to openly make audiovisual 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 Stateâ€™s Attorney, asking for declaratory and injunctive relief barring her from enforcing the statute on these facts. The ACLU moved for a preliminary 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 courtâ€™s concerns. This time, the judge held No. 11-1286 3 that the ACLU had cured the original defect but had â€œnot alleged a cognizable First Amendment injuryâ€ because the First Amendment does not protect a â€œright to audio record.â€ The judge denied leave to amend. The ACLU appealed. We reverse and remand with instructions to allow the amended complaint and enter a preliminary injunction 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 triggering First Amendment scrutiny. Illinois has criminalized the nonconsensual recording of most any oral communication, including recordings of public officials doing the publicâ€™s business in public and regardless of whether the recording is open or surreptitious. Defending the broad sweep of this statute, the Stateâ€™s Attorney relies on the governmentâ€™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 contentneutral 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 Amendmentâ€™s freespeech 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 â€œan eavesdropping device to hear or record all or part of any oral conversation without the consent of any party thereto.â€ 1961 Ill. Laws 1983. The statute defines â€œeavesdropping deviceâ€ as â€œany device capable of being used to hear or record oral conversation.â€ Id. (codified at 720 ILL. C OMP. S TAT. 5/14-1(a)); see also Celia Guzaldo Gamrath, A Lawyerâ€™s Guide to Eavesdropping in Illinois, 87 ILL. B.J. 362, 363 (1999) (discussing the history of the Illinois eavesdropping law). The legislature later amended the law to require the consent of â€œall of the partiesâ€ 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 interpretation of the eavesdropping statute, declaring that audio recordings were prohibited only if the circumstances â€œentitle [the conversing parties] to believe that the conversation is private and cannot be heard by others who are acting in a lawful manner.â€ In other words, recording a conversation was punishable under the eavesdropping statute only if the conversing parties had an â€œexpectation of privacy,â€ though the court remarked that the expectations of privacy protected under the statute were not necessarily â€œcoextensive with those imposed on governmental action by the fourth amendment.â€ 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 â€œthere can be no expectation of privacy by the declarant where the individual recording the conversation is a party to that conversation.â€ Id. at 958. Chief Justice Bilandic dissented, arguing that normal privacy expectations include an assumption that most conversations are not being recorded. Id. at 959-60 (Bilandic, C.J., dissenting). He also distinguished Beardsley because the parties to the conversation in that case â€œknew that the defendant had the tape recorderâ€ and therefore â€œgave their implied consent to the recording of their conversation.â€ Id. at 960. The defendant in Herrington, by contrast, recorded a conversation surreptitiously. In 1994 the Illinois legislature amended the eavesdropping statute so that it applies to â€œany oral communication 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.â€ Ill. Pub. Act 88-677 (1994) (codified at 720 ILL. C OMP. S TAT. 5/14-1(d)). This amendment effectively overrode the Beardsley and Herrington decisions. As later interpreted by the Illinois Supreme Court, under the amended statute a partyâ€™s consent may be â€œinferred from the surrounding circumstances indicating that the party knowingly agreed to the surveillance.â€ 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 purposes; officers have substantial discretion to record a wide variety of police-civilian encounters without the subjectâ€™s consent. 720 ILL. C OMP. S TAT. 5/14-3(h). These include any â€œenforcement stop,â€ a broadly defined term that includes â€œtraffic stops,â€ â€œmotorist assists,â€ â€œpedestrian stops,â€ and â€œrequests for identification.â€ 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 â€œbroadcast by radio, television, or otherwiseâ€ for live or â€œlater broadcasts of any function where the public is in attendance and the conversations are overheard incidental to the main purpose for which such broadcasts are then being made.â€ Id. 5/14-3(c). B. The ACLUâ€™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. Â§ 1983 barring her from enforcing the eavesdropping statute against audio recording that the organization plans to carry out in connection with its â€œpolice accountability program.â€ More specifically, the ACLU intends to implement a â€œprogram 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.â€ The program will include, among other things, audiovisual recording of policing at â€œexpressive activityâ€ eventsâ€”protests and demonstrationsâ€”in public fora in and around the Chicago area. The organization also plans to make audiovisual recordings of policing at â€œexpressive activitiesâ€ 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 Amendmentâ€™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 unconstitutional as applied to the ACLUâ€™s planned recording and for a corresponding injunction barring the Cook County Stateâ€™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 Stateâ€™s Attorney moved to dismiss under Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure, 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 plaintiffsâ€”Colleen Connell, the ACLUâ€™s Executive Director, and Allison Carter, the ACLUâ€™s Senior Field Managerâ€”and more detail about the threat of prosecution. The ACLU renewed its motion for a preliminary injunction. The Stateâ€™s Attorney opposed this second round of motions, and again the district court agreed. The judge held that although the ACLU had â€œcured the limited standing deficienciesâ€ and now â€œsufficiently alleg[ed] a threat of prosecution,â€ 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 â€œ[t]he ACLU has not alleged a cognizable First Amendment injuryâ€ because the First Amendment does not protect â€œa right to audio record.â€ The judge also held that the ACLU had no First Amendment injury because the police officers and civilians who would be recorded were not â€œwilling speakers.â€ The judge viewed the ACLUâ€™s claim as â€œan unprecedented expansion of the First Amendmentâ€ and held that granting leave to amend would be futile because â€œ[t]he ACLU has not met its burden of showing standing to assert a First Amendment right or injury.â€ 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 â€œ[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 courtâ€™s application of an erroneous view of the law is by definition an abuse of discretion.â€ Sosebee v. Astrue, 494 F.3d 583, 586 (7th Cir. 2007). The district courtâ€™s decision turned on mistaken understandings 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 ACLUâ€™s request for preliminary injunctive relief. The ACLU asks that we address that matter here. â€œTo 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.â€ Ezell v. City of Chicago, 651 F.3d 684, 694 (7th Cir. 2011). If the moving party makes this threshold showing, the court â€œweighs 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.â€ 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, â€œthe likelihood of success on the merits will often be the determinative factor.â€ Joelner v. Village of Washington Park, Ill., 378 F.3d 613, 620 (7th Cir. 2004). This is because the â€œloss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury,â€ Elrod v. Burns, 427 U.S. 347, 373 (1976) (plurality opinion), and the â€œquantification of injury is difficult and damages are therefore not an adequate remedy,â€ 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 preliminarily enjoining the enforcement of a statute that is probably unconstitutional. Joelner, 378 F.3d at 620. Stated differently, â€œinjunctions protecting First Amendment freedoms are always in the public interest.â€ 1 1 The Stateâ€™s Attorney argues that a preliminary injunction is inappropriate here because it would grant the ACLU affirmative 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 Socâ€™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 plaintiffâ€™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 questions: (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 Stateâ€™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 â€œspeakers may self-censor rather than risk the perils of trialâ€); Doran v. Salem Inn, Inc., 422 U.S. 922, 931 (1975) (â€œ[P]rior to final judgment there is no established declaratory remedy comparable to a preliminary injunction; unless preliminary relief is available upon a proper showing, plaintiffs in some situations may suffer unnecessary and substantial irreparable harm.â€). 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 weâ€™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 â€œan essential and unchanging part of the case-or-controversy requirement of Article III.â€ 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 suffering â€œinjury in factâ€ that is concrete and particularized; 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. Depâ€™t of Justice, 577 F.3d 736, 739 (7th Cir. 2009). It is well established that â€œpreenforcement challenges . . . are within Article III.â€ Brandt v. Village of Winnetka, Ill., 612 F.3d 647, 649 (7th Cir. 2010). To satisfy the injury-infact requirement in a preenforcement action, the plaintiff must show â€œan 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.â€ Babbitt v. United Farm Workers Natâ€™l Union, 442 U.S. 289, 298 (1979). Stated differently, â€œ[a] person need not risk arrest before bringing a pre-enforcement challenge under the First Amendment . . . .â€ 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 â€œexistence 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 â€˜injuryâ€™ for the purpose of standing.â€ 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 â€œneed not show that the authorities have threatened to prosecute himâ€ because â€œthe threat is latent in the existence of the statute.â€). The district court dismissed the first version of the ACLUâ€™s complaint because it did not sufficiently allege a credible threat of prosecution under the eavesdropping statute. The proposed amended complaint added two individual plaintiffsâ€”ACLU employees Connell and Carterâ€”and more details about the threat of prosecution, including information about recent prosecutions 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 â€œ[t]he threat of prosecution is credible and imminent.â€ At this point, however, the judge perceived a different standing defectâ€”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 â€œright to audio recordâ€ and therefore the ACLU had not alleged a constitutional 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 â€œno weaponsâ€ rule. He defied a police officerâ€™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 defendants. Id. at 1114. Addressing the First Amendment claim, we said that â€œthere is nothing in the Constitution which guarantees the right to record a public event.â€ Id. at 1111 (citing Nixon v. Warner Commcâ€™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 itâ€™s worth. Immediately after this sentence is the following clarifying explanation: â€œThe right to gather information No. 11-1286 15 may be limited under certain circumstances. . . . The proper constitutional measure of the . . . â€˜weaponsâ€™ ban is whether the restriction constitutes a valid time, place, or manner regulation.â€ Id. In other words, as applied to Potts, Lafayetteâ€™s ban did implicate free-speech interests under the First Amendment, but it was subject to review under the â€œtime, place, or mannerâ€ 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 courtâ€™s second reason for rejecting the amended complaint was also off the mark. The judge held that without a â€œwilling speaker,â€ 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 â€œwilling speakersâ€ 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 derivative speech rights are at stake. Thatâ€™s an incorrect assumption. The district courtâ€™s reliance on the â€œwilling speakerâ€ principle gets the doctrine right but its application wrong. It is well established that â€œ[w]hen one person has a right to speak, others hold a â€˜reciprocal right to receiveâ€™ the speech.â€ 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)). Itâ€™s also true that this derivative â€œright to receiveâ€ or â€œright to listenâ€ principle â€œpresupposes a willing speaker.â€ Va. State Bd. of Pharmacy, 425 U.S. at 756; see also Shepard, 507 F.3d at 549 (â€œa precondition of the right to receive . . . is the existence of a willing speakerâ€ (internal quotation marks omitted)); Bond, 585 F.3d at 1077. But this is not a thirdparty â€œright to receiveâ€ 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 officersâ€™ speech as a corollary of the officersâ€™ right to speak. Any bystander within earshot can hear what police officers say in public places; â€œreceiptâ€ occurs when the speech is uttered in public and at a volume that others can hear. In other words, the officersâ€™ speech is â€œreceivedâ€ at the moment it is heard; the eavesdropping statute obviously does not prohibit this. The ACLUâ€™s challenge to the statute implicates a different set of First Amendment principles. The â€œright to receiveâ€ strand of First Amendment doctrineâ€”with its â€œwilling speakerâ€ preconditionâ€”has no bearing on the ACLUâ€™s standing. The Stateâ€™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 eavesdropping statute plainly prohibits the ACLUâ€™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 onduty police officers; three of these were filed by Alvarezâ€™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 Commâ€™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 prosecutions 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 (â€œThe Supreme Court has instructed us that a threat of prosecution is credible when a plaintiffâ€™s intended conduct runs afoul of a criminal statute and the Government fails to indicate affirmatively that it will not enforce the statute.â€ (citing Virginia v. Am. Booksellers Assâ€™n, Inc., 484 U.S. 383, 393 (1988))). These allegations are easily sufficient to establish a credible threat of prosecution. Alvarezâ€™s arguments to the contrary are unavailing. She insists that the ACLUâ€™s program is â€œadvocacy under the guise of First Amendment infringementâ€ without any possibility of a â€œpersonal and concrete injury.â€ We confess we do not understand the point. The ACLUâ€™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 â€œeavesdropperâ€ and the liability of an eavesdropperâ€™s â€œprincipalâ€); see more generally id. 5/5-4(a)(2) (providing for corporate liability if the â€œoffense is authorized, 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 corporationâ€). Nothing more is needed for preenforcement standing. No. 11-1286 19 The Stateâ€™s Attorney maintains that the injury alleged here is â€œmerely conjectural or hypotheticalâ€ because the threat of prosecution will only occur â€œat some indefinite future timeâ€ and â€œthe identities of the parties to the conversations that [the] ACLU and its members want to audio record is wholly unknown.â€ This argument is a nonstarter. It is well established that in preenforcement suits â€œ[i]njury need not be certain.â€ 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 constitutional violations based on the manner of police enforcement); Schirmer, 621 F.3d at 587 (challenged law could not â€œfairly be read to prohibitâ€ plaintiffsâ€™ actions). Itâ€™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 (â€œAny pre-enforcement suit entails some element of chance . . . .â€). 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 plaintiffâ€™s claim in a preenforcement posture, there is no reason to doubt standing. Here, absent officer consent, the eavesdropping statute flatly prohibits the ACLUâ€™s planned recording, exposing the organization and its employees to arrest and criminal 20 No. 11-1286 punishment. The Stateâ€™s Attorney has recently prosecuted similar violations and intends to continue doing so. Thatâ€™s enough to establish a credible threat of prosecution.3 Finally, the Stateâ€™s Attorney argues that principles of Younger abstention affect the standing inquiry, or alternatively, that Younger abstention applies. See Younger 3 Although the Stateâ€™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 â€œinferred from the surrounding circumstances,â€ including facts showing that â€œa party knows of . . . encroachments on the routine expectation that conversations are private.â€). 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 impliedconsent doctrine, and more particularly its potential application 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) (â€œImplied consent is not . . . constructive consent. Rather, implied consent is consent in fact which is inferred from surrounding circumstances indicating that the party knowingly agreed to the surveillance.â€ (citations and internal quotation marks omitted)); see also Schirmer v. Nagode, 621 F.3d 581, 586 (7th Cir. 2010) (â€œ[W]hen an ambiguous statute arguably prohibits certain protected speech, a reasonable fear of prosecution can provide standing for a First Amendment challenge.â€). No. 11-1286 21 v. Harris, 401 U.S. 37 (1971). â€œYounger abstention is appropriate 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.â€ 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 â€œreally were imminent, then a federal court might well abstain on comity grounds.â€ 520 S. Mich. Ave. Assocs., Ltd. v. Devine, 433 F.3d 961, 963 (7th Cir. 2006). The Stateâ€™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. Thatâ€™s obviously not right. The Stateâ€™s Attorneyâ€™s argument misunderstands the basis of preenforcement standing, which â€œdepends on the probability of harm, not its temporal proximity.â€ 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 Stateâ€™s Attorney has staked out an extreme position. She contends that openly recording what police officers say while performing their duties in traditional public foraâ€”streets, sidewalks, plazas, and parksâ€”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 â€œwilling speakerâ€ principle that infected the district courtâ€™s standing determination. We have already 22 No. 11-1286 corrected these misunderstandings and need not repeat 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 eavesdropping laws of most other states,4 the gravamen of the Illinois eavesdropping offense is not the secret interception or surreptitious recording of a private communication. 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. Â§ 2510(2); Jesse Harlan Alderman, Police Privacy in the iPhone Era?, 9 F IRST A MEND . L. R EV . 487, 53345 (2011) (collecting state statutes); cf. O R . R EV . S TAT . Â§ 165.540(1)(c), (6)(a) (exempting â€œunconcealedâ€ recordings at public events but otherwise requiring that â€œall participants in the conversation are specifically informed that their conversation is being obtainedâ€). 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 expression commonly used for the preservation and dissemination of information and ideas and thus are â€œincluded within the free speech and free press guaranty of the First and Fourteenth Amendments.â€ Burstyn v. Wilson, 343 U.S. 495, 502 (1952) (holding that movies are a protected form of speech). Laws that restrict the use of expressive media have obvious effects on speech and press rights; the Supreme Court has â€œvoiced particular concern with laws that foreclose an entire medium of expression.â€ 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 â€œdynamic, multifaceted category of communicationâ€ and that there is â€œno basis for qualifying the level of First Amendment scrutiny that should be applied to this mediumâ€). The act of making an audio or audiovisual recording is necessarily included within the First Amendmentâ€™s 5 The First Amendment provides that â€œCongress shall make no law . . . abridging the freedom of speech, or of the press,â€ U.S. C ONST . amend. I, and applies to the States through Section 1 of the Fourteenth Amendment, U.S. C ONST . amend. XIV, Â§ 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 unprotected, as the Stateâ€™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 â€œ[l]aws enacted to control or suppress speech may operate at different points in the speech process.â€ 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 â€œregulation of a medium [of expression] inevitably affects communication itself.â€ 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 communication. 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. Commâ€™r of Revenue, 460 U.S. 575, 582 (1983) (holding that a tax on ink and paper â€œburdens rights protected by the First Amendmentâ€). 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, â€œ[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.â€ 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 Courtâ€™s campaign-finance cases illustrate how laws of this sort trigger First Amendment scrutiny. The Court held long ago that campaign-finance regulations implicate core First Amendment interests because 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 communications â€œnecessarily reduces the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reachedâ€); see also Citizens United, 130 S. Ct. at 898 (invalidating the federal ban on corporate and union spending for political speech because the government may not â€œrepress speech by silencing certain voices at any of the various points in the speech processâ€); McConnell v. FEC, 540 U.S. 93, 252 (2003) (Scalia, J., concurring in part and dissenting in part) (â€œThe 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.â€); Nixon v. Shrink Mo. Govâ€™t PAC, 528 U.S. 377, 400 (2000) (Breyer, J., concurring) (â€œ[A] decision to contribute money to a campaign is a matter of First Amendment concernâ€”not because money is speech (it is not); but because it enables speech.â€). So too with laws that restrict audio recording. Audio and audiovisual recording are communication technologies, and as such, they enable speech. Criminalizing all nonconsensual audio recording necessarily limits the information that might later be published or broadcastâ€”whether to the general public or to a single family member or friendâ€”and thus burdens First Amend- No. 11-1286 27 ment rights. If, as the Stateâ€™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 eavesdropping statute prohibits nonconsensual audio recording of public officials performing their official duties in public. â€ â€˜[T]here is practically universal agreement that a major purpose ofâ€™ the First Amendment â€˜was to protect the free discussion of governmental affairsâ€™ . . . .â€ Ariz. Free Enter. Clubâ€™s Freedom Fund PAC v. Bennett, 131 S. Ct. 2806, 2828 (2011) (quoting Buckley, 424 U.S. at 14). This agreement â€œ â€˜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.â€™ â€ Id. at 2828-29 (quoting Buckley, 424 U.S. at 14, quoting New York Times v. Sullivan, 373 U.S. 254, 270 (1964)). Moreover, â€œthe First Amendment goes beyond protection of the press and self-expression of individuals to prohibit government from limiting the stock of information from which members of the public may draw.â€ First Natâ€™l Bank of Bos. v. Bellotti, 435 U.S. 765, 783 (1977). The freedom of speech and press â€œ â€˜embraces at the least the liberty to discuss publicly and truthfully all matters of public concern without previous restraint or fear of subsequent punishment.â€™ â€ Id. at 767 (quoting Thornhill v. Alabama, 310 U.S. 88, 101-02 (1940)). In this regard, the ACLUâ€™s challenge to the eavesdropping 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 â€œof the press to collect and disseminate newsâ€ 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 grandjury subpoena]. No. 11-1286 29 We do not question the significance of free speech, press, or assembly to the countryâ€™s welfare. Nor is it suggested that news gathering does not qualify for First Amendment protection; without some protection for seeking out the news, freedom of the press could be eviscerated. Id. at 681. The Court declined to fashion a special journalistsâ€™ privilege for essentially two reasons. First, the Court relied on the general principle that â€œthe First Amendment does not invalidate every incidental burdening of the press that may result from the enforcement of civil or criminal statutes of general applicability.â€ Id. at 682. By this the Court meant that â€œotherwise valid laws serving substantial public interests may be enforced against the press as against others, despite the possible burden that may be imposed.â€ Id. at 682-83 (emphasis added). Stated differently, the institutional press â€œ â€˜has no special immunity from the application of general laws.â€™ â€ 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 journalistâ€™s testimonial 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 reporterâ€™s claim out of hand. Instead, the Court evaluated the Stateâ€™s demand for the reporterâ€™s testimony against the First Amendment interests at stake and held that the 30 No. 11-1286 publicâ€™s interest in obtaining â€œ â€˜every manâ€™s evidenceâ€™ â€ 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 reporterâ€™s testimony might be a pretext for â€œ[o]fficial harassment of the press,â€ a circumstance that â€œwould pose wholly different issues for resolution under the First Amendment.â€ Id. at 707. The Supreme Court has not elaborated much on its abstract observation in Branzburg that â€œnews gathering is not without its First Amendment protections.â€ 7 Id. The 7 One exception appears to be the Courtâ€™s caselaw recognizing a limited constitutional â€œright of accessâ€ 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 proceedings, at least where the proceeding â€œhistorically has been open to the press and general public,â€ and public access â€œplays a particularly significant roleâ€ in the functioning of the proceeding in question and â€œthe government as a whole.â€ 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 Courtâ€™s discussion of a First Amendment right to gather news and information. See id. at 703-04 (noting that an expansive judicially administered right to gather information would â€œpresent practical and conceptual difficulties of a high orderâ€ and â€œembark the judiciary on a long and difficult journeyâ€ with an â€œuncertain destinationâ€). Still, the Courtâ€™s observation that speech and press freedom includes, by implication, â€œsome protectionâ€ 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 sovereignty 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 Contâ€™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 transitauthority 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 traditional 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: â€œThat 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 transacted; so it is the Interest, and ought to be the Ambition, of all honest Magistrates, to have their Deeds openly examined, and publickly scannâ€™d.â€ 8 See, e.g., B ERNARD B AILYN , T HE I DEOLOGICAL O RIGINS OF THE A MERICAN R EVOLUTION 36 (1967) (observing that Catoâ€™s Letters, which included Gordonâ€™s essay on the freedom of speech, were â€œrepublished 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 statement of the nature of political liberty and above Locke as an exposition of the social sources of the threats it facedâ€); 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 Catoâ€™s Letter No. 15). Other colonial writers â€œstressed the necessity and right of the people to be informed of their governorsâ€™ conduct so as to shape their own judgments on â€˜Publick Mattersâ€™ and be qualified to choose their representatives.â€ L EONARD W. L EVY, E MERGENCE OF A F REE P RESS 134 (2004). The Virginia General Assembly objected to the infamous Sedition Act of 1798 in part â€œbecause it is levelled against that right of freely examining public characters and measures, and of free communication among the people thereon.â€ Virginia Resolutions 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 â€œrepressed that information and communication among the people, which is indispensable to the just exercise of their electoral rights.â€ 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 Fourteenth Amendment was ratified. In his famous 1868 treatise on constitutional law, Thomas Cooley explained that a foremost purpose of the Constitutionâ€™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 discussion 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 expressionâ€”the use of a common instrument of communicationâ€”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 officersâ€™ defense of qualified immunity. Id. The court framed the issue this way: â€œ[I]s there is a constitutionally protected right to videotape police carrying out their duties in public?â€ Id. at 82. The court held that â€œ[b]asic First Amendment principles, along with case law from this and other circuits, answer that question unambiguously in the affirmative.â€ 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 Courtâ€™s observations about the right to gather and disseminate information about government: â€œGathering information about government officials in a form that can readily be disseminated to others serves a cardinal First Amendment interest in protecting and promoting â€˜the free discussion of governmental affairs.â€™ â€ 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 courtâ€™s First Amendment ruling was not limited to â€œdefensiveâ€ recording to preserve evidence of wrongdoing, as our dissenting colleague 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 Courtâ€™s decision in Branzburg rested in part on the principle that a generally applicable law will not violate the First Amendment simply because its application 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 â€œthere [i]s insufficient case law establishing a right to videotape police officers during a traffic stop to put a reasonably competent officer on â€˜fair noticeâ€™ that seizing a camera or arresting an individual for videotaping police during the stop would violate the First Amendment,â€ id. at 262. The First Circuitâ€™s decision in Glik aligns with authority from the Eleventh Circuit and with the weight of districtcourt decisions. See Smith v. City of Cumming, 212 F.3d 1332, 1333 (11th Cir. 2000) (summarily recognizing â€œa First Amendment right, subject to reasonable time, manner and place restrictions, to photograph or videotape police conductâ€); 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) (â€œ[G]enerally applicable laws do not offend the First Amendment simply because their enforcement . . . has incidental effects on [the] ability to gather and report the news.â€); Arcara v. Cloud Books, Inc., 478 U.S. 697, 707 (1986) (â€œ[T]he First Amendment is not implicated by the enforcement of a public health regulation of general application against the physical premises in which respondents happen to sell books.â€). Itâ€™s important to note that the legal sanction at issue in Branzburgâ€”enforcement of a grand-jury subpoenaâ€”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 sourceâ€™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 â€œenforcement of such general laws against the press is not subject to stricter scrutiny than would be applied to enforcement against other persons or organizations.â€ Cohen, 501 U.S. at 670. Branzburg and Cohen thus stand for the unremarkable proposition that the press does not enjoy a special constitutional 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 â€œthe First Amendment is not implicated by the enforcement of a public health regulation of general application against the physical premises in which respondents happen to sell books.â€ 478 U.S. at 707. The Court noted, however, that it would be a different case if â€œthe â€˜nonspeechâ€™ which drew sanction was intimately related to expressive conduct protected under the First Amendment.â€ Id. at 706 n.3. Instead, the â€œnonspeechâ€ that was subject to general public-health regulation in Arcaraâ€”operating an establishment where prostitution is carried onâ€”â€œbears absolutely no connection to any expressive activity,â€ notwithstanding that the establishment 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 Indianaâ€™s public-indecency