The United States Court of Appeals for the Seventh Circuit has ruled that the First Amendment protects the right of private citizens to record the actions of police while they are performing their duties in public places. The decision resulted from a lawsuit by the American Civil Liberties Union of Illinois against the state's unusually broad eavesdropping statute. It criminalizes all audio recordings made without the consent of the parties involved, even of public officials in public places.

"The act of making an audio or audiovisual recording is necessarily included within the First Amendment’s guarantee of speech and press rights as a corollary of the right to disseminate the resulting recording," wrote the two-judge majority in a Tuesday decision. The Illinois statute "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."

But Judge Richard Posner disagreed with his colleagues. Posner is the judge who raised concerns in oral arguments that striking down the statute would lead to more "snooping around by reporters and bloggers."

The majority's ruling "casts a shadow over electronic privacy statutes of other states," Posner wrote in his dissent. He worried that crime victims would be hesistant to report crimes to police officers in public out of fear that the conversation might be recorded by a third party's cell phone and posted to the Internet.

But Posner's colleagues disagreed. "The Illinois statute is a national outlier," they wrote. Most states only regulate recordings of private conversations. Not those that occur in public places in earshot of passersby. Moreover, they wrote, "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." The majority argued that this made it very different from laws elsewhere in the country.

The Seventh Circuit is at least the second appeals court to endorse a First Amendment right to record the actions of public figures in public places. Last year, the United States Court of Appeals for the First Circuit sided with a Boston man who argued his First Amendment rights were violated when he was arrested for recording an arrest that occurred on Boston Common.