A little more on the
Glik decision, from respected First Amendment scholar and UCLA law prof.
Eugene Volokh:
Quote:
The decision is correct, I think: Just as the right to speak can be unconstitutionally burdened by restrictions on spending money to speak, or associating in order to speak, it can also be unconstitutionally burdened by restrictions on the gathering of information that is needed to credibly speak.
And the decision is also important. It?s just the latest in a line of circuit court cases, but it?s likely to get a lot of publicity, encourage police departments to respect the public?s rights to openly record police officers in public, and encourage lawyers to challenge violations of these rights. This is especially so because the court held that the right was clearly established, so that the officers won?t have qualified immunity. This means that if the plaintiff proves to the jury that his account of the facts is right, he can recover damages and attorney?s fees.
Note, though, that the decision is quite limited in its scope. It doesn?t, for instance, deal with whether state laws that bar surreptitious recordings ? including of police officers in public ? are constitutional (the argument would be that they are permissible ?manner restrictions?).
The First Circuit decision also doesn?t deal with whether the First Amendment right extends to the recording not just of government officials but of others (whether employees of a business or a nonprofit, or private citizens acting outside of any scope of employment). It doesn?t deal with whether state laws that bar surreptitious recordings of supposedly ?private conversations? are constitutional. And it doesn?t discuss the permissible scope of restrictions on videotaping on government property (outside traditional public forums such as streets, sidewalks, and parks).
The logic of the opinion is broad enough to strengthen the hand of people who challenge some of these restrictions, and may ultimately lead to some of these restrictions being struck down. But which ones will indeed ultimately be struck down, and which will be upheld, is not clear.
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The rough part for Michael Allison (the guy facing 75 years in Illinois) is that based on my understanding of the facts of his case,
all of the recordings he made would fall under the list of things that Prof. Volokh noted as questions
not dealt with in the First Circuit's ruling in the Glik case. (I believe all of his recordings were made surreptitiously, and I believe at least one of them was made in a context that would not be considered a "public space.")
Here's one thing that strikes me as particularly odd, and particularly unfair, in Michael Allison's case: he was arrested in large part for recording a hearing in his own misdemeanor case (he was charged with violating a zoning ordinance) after being denied his request that a court recorder be present for the hearing.
True, there was a technical/procedural reason that he was denied his request for a court recorder (misdemeanor charges don't entitle you to a court recorder being present; had he been charged with a felony there would have been a recorder present for sure), but it just seems manifestly unjust to refuse a defendant the opportunity to document a hearing in his own case. It seems particularly unjust when that same defendant has filed a lawsuit against the city to challenge the very zoning ordinance that he was charged with violating, and only started recording the police in the first place because he believed he was being harassed in response to his civil suit!
I sure hope that at the end of day, the relevant portion of the Illinois eavesdropping law at question here ends up subject to a permanent injunction against enforcement. If the Illinois state legislature is determined to have a law on the books making it a criminal act to record the police, that law should at least be clearly defined, very narrow in scope, and structured so that it can only be applied very, very infrequently, and only when the circumstances truly call for that manner of restraint.
And to top it all off... 75 years for this sort of "crime" is just excessive to the point of absurdity. There's no way in hell he will receive the max if he's convicted, of course, but for it to even be possible is way the hell out of line.