Constitutional Law

ACLU claims Ill. eavesdropping law violates free speech

By By The Associated Press

CHICAGO ? Last fall, the Perteet brothers and their roommate decided to take a break from studying and headed to a McDonald's in DeKalb on a late-night food run.

Their trip was interrupted when a police officer pulled them to the side after they got their food. Fanon Perteet, feeling uneasy, got his phone video camera ready so he could record the exchange, which stemmed from the officer suspecting the roommate of driving drunk.

Little did Fanon know, audio recording in public areas without consent is a felony under the Illinois Eavesdropping Act. He was arrested and his brother, Adrian, was too moments later for taping Fanon's arrest.

The siblings are among several people charged with violating the state's eavesdropping law who are mentioned in a lawsuit the American Civil Liberties Union of Illinois filed last week. The ACLU is suing the state for charging citizens with breaking the eavesdropping law.

The organization says recordings such as the ones made by the Fanon brothers are a way for individuals and groups to share information about the police with the public ? a First Amendment right. The lawsuit names Cook County State's Attorney Anita Alvarez, who enforces the law, as the defendant

Alvarez said at an Aug. 20 news conference unrelated to the lawsuit that the eavesdropping law was written for everyone.

"It doesn't just protect police officers, it protects all of you and every citizen of the state of Illinois," she said.

Only a few other states have laws preventing individuals from audio recording the police ? Massachusetts and Oregon, where only secret audio recording of police is illegal, according to the ACLU of Illinois.

"I grew up on the West Side of Chicago, and I went this long without having anything on my record," said Adrian Perteet, now 21, a student at Northern Illinois University. "It's kind of funny to come here to school, somewhere I feel safe and yet catch a felony charge."

ACLU lawyer Adam Schwartz said group members monitor law enforcement and want to be able to record police activity without fear of arrest when they attend demonstrations and protests.

"We're not trying to get inside a police station house where the public isn't invited," Schwartz said. "We're talking about standing on a street corner and making these recordings."

Even though citizens can't make recordings, the police can. Squad cars often have video or audio-recording equipment to protect officers and the community.

"People are getting prosecuted for essentially oversight of the police," Schwartz said.

Chicago-Kent Professor Harold Krent, an expert in constitutional law, said while the pursuit of police transparency is important, the ACLU has "a long shot" at winning the case. The law can't be contested, so challenging one aspect of its enforcement is difficult because the ACLU must prove it's being enforced selectively, Krent said.

"That's a tough legal argument to make," he said.

Chicago Police Department Spokesman Roderick Drew said in a statement that any action that interferes with police "puts everyone involved at risk."

The ACLU's Schwartz hopes other Illinois state's attorneys will stop prosecutions of those who audio record police if the organization wins the Cook County case.

The Perteet brothers pleaded guilty to a lesser misdemeanor charge. Adrian Perteet said instead of fighting the charge, he and Fanon, now 23, settled because they didn't want to face felonies.

"I think what the ACLU is doing is good," Adrian Perteet said. "We need more organizations and groups to speak out for people."

Full post as published by First Amendment Center on August 22, 2010 (boomark / email).