1162 PLIED TO POLICE MONITORING PROGRAM.

1162

ONSTITUTIONAL

— F

IRST

MENDMENT

— S

EVENTH

IRCUIT

RELIMINARILY

NJOINS

AVESDROPPING

P-

PLIED

OLICE

ONITORING

ROGRAM

. — American Civil Lib-

erties Union of Illinois v. Alvarez, 679 F. 3d 583 (7th Cir. 2012), cert.

denied, No. 12-318, 2012 WL 4050487 (U.S. Nov. 26, 2012).

The First Amendment protects the right to communicate by ensur-

ing that “Congress shall make no law . . . abridging the freedom of

speech, or of the press.”

Laws that criminalize eavesdropping restrict

the ability to record and share speakers’ words in order to preserve

their conversational privacy. Recently, in American Civil Liberties

Union of Illinois v. Alvarez,

a divided Seventh Circuit panel found

one such statute to be an unconstitutional suppression of speech as ap-

plied to the public speech of police officers.

A strongly worded dissent

argued that such bans were necessary to protect individual privacy in

public places. Although the court addressed a narrow application of

the law and did so at the preliminary injunction stage, the judges did

not limit their reasoning to the specific facts of the case, but instead

suggested broader rules of conversational privacy. This wider gaze

may suggest that, in practice, the same determination of privacy will

apply to all speech exposed to the public. The court in Alvarez missed

an opportunity to adopt a nuanced framework for First Amendment

privacy analysis that responds to improved recording technology by

recognizing gradations of privacy in public speech.

In Illinois, it is a crime to record any conversation without the con-

sent of all parties,

even if the recording occurs openly and the parties

have no reasonable expectation of privacy.

The Illinois statute is the

most stringent in the country.

In 2010, the American Civil Liberties

Union of Illinois (ACLU) challenged the statute. The ACLU sought to

detect and deter police misconduct by openly recording officers per-

forming their official duties in public places.

Before implementing

this monitoring program, the ACLU sued the Cook County State’s At-

torney in federal court to enjoin her, both preliminarily and perma-

nently, from prosecuting its members for violations of the law.

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

U.S. C

ONST

. amend. I.

679 F. 3d 583 (7th Cir. 2012), cert. denied, No. 12-318, 2012 WL 4050487 (U.S. Nov. 26,

2012).

See id. at 608.

720 I

. C

OMP

. S

TAT

. 5/14-2(a)(1) (2010).

Id. 5/14-1(d).

See Jesse Harlan Alderman, Police Privacy in the iPhone Era?: The Need for Safeguards in

State Wiretapping Statutes to Preserve the Civilian’s Right to Record Public Police Activity, 9

IRST

MEND

L. R

. 487, 500 (2011); see also id. at 533–45 (collecting eavesdropping laws).

See Alvarez, 679 F. 3d at 586.

Id.

2013] RECENT CASES 1163

Judge Conlon of the Northern District of Illinois dismissed the suit

for lack of standing.

The court first ruled that the ACLU had insuffi-

ciently alleged a threat of prosecution, a deficiency the ACLU cured in

an amended complaint.

The court then diagnosed another standing

problem, finding that no precedent identified a “First Amend-

ment . . . right to audio record,” and thus that the ACLU had “not al-

leged a cognizable First Amendment injury.”

The Seventh Circuit, in a majority opinion by Judge Sykes,

re-

versed and remanded with an instruction to issue the ACLU’s request-

ed preliminary injunction.

The majority reversed the district court’s

standing ruling, finding that the lower court had wrongly understood a

prior Seventh Circuit determination that “nothing in the Constitu-

tion . . . guarantees the right to record a public event” to mean that the

Constitution did not protect that right at all.

The majority noted

that the prior opinion focused on whether the challenged prohibition

“constitute[d] a valid time, place, or manner regulation,”

and thus in-

dicated that bans on recording “implicate free-speech interests.”

These

interests provided the ACLU with standing to bring its claim.

Turning to the merits of the ACLU’s First Amendment claim,

Judge Sykes identified audio recordings as expressive media, the legal

restriction of which has “obvious effects on speech and press rights.”

Analogizing the statute at issue to one that would ban taking notes at

a public event, the majority reasoned that the First Amendment’s

guarantee of the right to speak and publish freely would be empty if it

did not also bar laws that “operate at different points in the speech

process.”

The ACLU’s police accountability program presented a

particularly stark challenge to the statute. Open monitoring of police

activity would increase the stock of information about the performance

of critical public duties and thus would advance “a cardinal First

Amendment interest in protecting and promoting the free discussion of

governmental affairs.”

The Founding generation emphasized “the

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

Am. Civil Liberties Union of Ill. v. Alvarez, No. 10 C 5235, 2011 WL 66030, at *4 (N.D. Ill.

Jan. 10, 2011).

Id. at *3.

Id.

Judge Sykes was joined by Judge Hamilton.

Alvarez, 679 F. 3d at 608.

Id. at 591 (quoting Potts v. City of Lafayette, 121 F. 3d 1106, 1111 (7th Cir. 1997)) (internal

quotation mark omitted).

Id. (quoting Potts, 121 F. 3d at 1111) (internal quotation mark omitted).

Id. at 591–92.

Id. at 595.

Id. at 596 (quoting Citizens United v. FEC, 130 S. Ct. 876, 896 (2010)) (internal quotation

mark omitted).

Id. at 601 (quoting Glik v. Cunniffe, 655 F. 3d 78, 82 (1st Cir. 2011)) (internal quotation mark

omitted).

1164 HARVARD LAW REVIEW [Vol. 126:1162

necessity and right of the people to be informed of their governors’

conduct,”

a historical consideration that cast doubt on the constitu-

tionality of the prosecutions the ACLU sought to enjoin.

The majority did not decide whether to apply strict scrutiny, be-

cause it held that the statute as applied would likely fail even interme-

diate scrutiny.

This standard distinguishes permissible restrictions

on speech, those “narrowly tailored to serve a significant governmental

interest,”

from unconstitutionally broad restrictions, those “greater

than necessary to further the important governmental interest.”

Alt-

hough the majority agreed that Illinois’s interest in protecting conver-

sational privacy was “easily an important governmental interest” that

“serve[d] First Amendment interests” by reducing the possible chilling

effect of public disclosure,

it concluded that the specific conversa-

tions the ACLU sought to record “lack[ed] any ‘reasonable expectation

of privacy,’”

under the Fourth Amendment test from Katz v. United

States.

Police officers’ public speech is not the kind of conversation

“that carr[ies] privacy expectations even though uttered in public plac-

es,” so restrictions on recording these communications could not ad-

vance conversational privacy.

That the statute would nonetheless

permit these restrictions was proof that it was not narrowly tailored to

an important governmental interest and thus was “likely unconstitu-

tional” under intermediate scrutiny.

Because a demonstration of a

First Amendment claim’s likely success “normally favors granting pre-

liminary injunctive relief,”

the majority preliminarily enjoined the

State’s Attorney from applying the statute to the monitoring program.

Judge Posner dissented.

Troubled by the breadth of the majori-

ty’s invalidation of the eavesdropping statute, he asserted that the

opinion transformed Illinois’s legal regime from one requiring all-party

consent to one that did not require the consent of even one party. He

further contended that the underlying logic cast doubt on other states’

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

Id. at 600 (quoting L

EONARD

W. L

EVY

, E

MERGENCE

REE

RESS

134 (rev. ed. 2004)).

Id. at 604. The majority wrote that the “statute is content neutral on its face,” id. at 603,

and also ruled that strict scrutiny is appropriate “when the government discriminates among pri-

vate speakers, not when it facilitates its own speech,” id. at 604, by allowing officers to record.

Thus, the court held that it was “unlikely that strict scrutiny [would] apply.” Id.

Id. at 605 (quoting Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989)).

Id.

Id. at 606.

389 U.S. 347 (1967).

Alvarez, 679 F. 3d at 606.

Id. at 608.

Id. at 590.

Id. at 608. The order barred prosecuting the open recording of police officers’ public per-

formance of their duties or others’ speech, if incidentally captured while recording the police. Id.

Id. (Posner, J., dissenting).

2013] RECENT CASES 1165

comparable electronic privacy laws.

Judge Posner counseled re-

straint, comparing the “original understanding” of the First Amend-

ment as a prohibition on federal censorship to its modern role in pro-

tecting free speech from more than preemptive suppression, and

cautioned against “further departures” from a narrower view.

predicted that a right to record the police would threaten public safety

because the presence of recorders might distract officers and discour-

age attempts to speak with witnesses, victims, and suspects.

Moreover, Judge Posner emphasized, the statute served another

governmental interest: preserving citizens’ conversational privacy. As

Justice Harlan stated in dissent in United States v. White,

a Fourth

Amendment case, “[w]ere third-party bugging a prevalent practice, it

might well smother that spontaneity — reflected in frivolous, impet-

uous, sacrilegious, and defiant discourse — that liberates daily life.”

While the majority “implie[d] that anything said outdoors is ipso facto

public,” Judge Posner disagreed, writing that “private talk in public

places is common, indeed ubiquitous.”

Thus, because “the inhibiting

effect of nonconsensual recording . . . on the number and candor of

conversations,” together with other social costs, outweighed the legiti-

mate social value of increased accuracy, Judge Posner would have

found the Illinois statute constitutional under intermediate scrutiny.

Although Alvarez presented a specific factual challenge and reached

the Seventh Circuit at the early preliminary injunction stage, the ma-

jority’s use of Fourth Amendment definitions of privacy may regretta-

bly give its opinion a broader scope than it intended. By failing to of-

fer guidance on when these definitions are insufficient to identify a

state’s interest in conversational privacy, the majority risked broadly

endorsing Fourth Amendment standards in First Amendment cases

and thus requiring that legislatures permit eavesdropping on all speech

that occurs in public. The dissent cast a similarly wide net by predict-

ing a chilling effect despite the order’s limited immediate application

to conversations the police could already record. Neither opinion fully

confronted this case’s specific tension between the competing free

speech interests of speakers and listeners in a way that preserved the

possibility of recognizing different privacy interests in different public

conversations. Treating all speech in public according to a single

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

Id. at 609.

Id. at 611.

Id. at 611–12.

401 U.S. 745 (1971).

Alvarez, 679 F. 3d at 612 (Posner, J., dissenting) (quoting White, 401 U.S. at 787 (Harlan, J.,

dissenting)).

Id. at 613.

Id. at 614.

1166 HARVARD LAW REVIEW [Vol. 126:1162

standard may have been a feasible and efficient legal rule when indi-

viduals could, in practice, speak anonymously. However, as technolog-

ical developments erase the practical constraints on pervasive private

surveillance, this oversimplification will prevent legislatures from

crafting flexible rules that subject citizens neither to undue govern-

ment suppression nor to de facto self-censorship.

The majority uncritically imported the Katz “reasonable expecta-

tion of privacy” test into this First Amendment challenge and thus

risked establishing a broad prohibition on government efforts to pre-

serve the privacy of publicly audible speech. The court was likely cor-

rect that the ACLU’s program would reach only conversations “that

are not in fact private,”

and may have used Katz as a convenient

shorthand for privacy given the posture of this case, which required

only that they find the law “likely” unconstitutional under intermediate

scrutiny.

Indeed, the majority did attempt to limit Katz’s application

by explicitly asserting that Illinois was not “limited to using the Fourth

Amendment ‘reasonable expectation of privacy’ doctrine as a bench-

mark.”

Nevertheless, because the majority did not describe how to

conduct a privacy analysis rooted in the First Amendment or indicate

when, if ever, the Katz test would not accurately recognize a valid gov-

ernmental interest in conversational privacy, it risked fully adopting

Katz, protests to the contrary notwithstanding. The next court faced

with a privacy-enhancing statute motivated by First Amendment con-

cerns about the chilling effect of publicity will note the Seventh Cir-

cuit’s approving citation of Justice Harlan’s argument that “conversa-

tions in the open would not be protected against being overheard,”

but will find no countervailing insight into the ways that First

Amendment privacy differs. This importation of a standard that flatly

denies privacy interests in “[w]hat a person knowingly exposes to the

public”

may cut significantly more broadly than the instant case, ef-

fectively invalidating any restrictions on recording speech that is

knowingly exposed for purposes of the Fourth Amendment.

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

Id. at 606 (majority opinion). Concern that the statute was overly broad may have ex-

plained Chicago’s corporation counsel’s pre-Alvarez decision not to enforce the law during the

2012 NATO summit. Ryan Haggerty, Police Can Be Recorded at Protests, City Decides, C

RIB

., Apr. 28, 2012, at 1, available at http://articles.chicagotribune.com/2012-04-28/news/ct-met

-nato-eavesdropping-20120428_1_nato-summit-summit-protests-eavesdropping-law.

See Alvarez, 679 F. 3d at 590 (“[D]oes the . . . complaint state a claim for a First Amendment

violation; and . . . is that claim likely to succeed?”).

Id. at 606.

Id. (alteration omitted) (quoting Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J.,

concurring)) (internal quotation mark omitted).

Katz, 389 U.S. at 351 (majority opinion).

Without a full understanding of the First Amendment’s privacy-protecting implications, the

Illinois legislature could not know whether a then-pending amendment to the statute exempting

those who record police officers publicly performing their public duties would have saved the

2013] RECENT CASES 1167

The dissent weighed the social value of having more accurate rec-

ords of conversations against the costs of disrupting law enforcement

and chilling “the number and candor of conversations,”

but it de-

scribed costs that seemed to follow from a wholesale invalidation of

Illinois’s eavesdropping statute rather than from the ACLU’s specific

challenge. The dissent did begin by tying its criticism to the specific

context of police-civilian conversations, but its opposition was founded

on the fact that there was no evidence that all individuals always ex-

pect their conversations with police to be recorded.

This is a broad

test indeed, as it suggests that the government can ban memorializing

a class of conversations whenever some participants sometimes expect

privacy. Furthermore, the dissent’s prediction of diminished conversa-

tional privacy also indicates a presumption that the majority’s rule

will apply to all public speech. Conversations with police rarely fea-

ture the kind of spontaneous, frivolous discourse “that liberates daily

life . . . protected by the very fact of a limited audience.”

If the logic

of the majority’s rule does not extend beyond conversations with the

police, the ubiquitous “private talk in public places”

will remain off-

limits to eavesdroppers. Judge Posner’s concern that the rule will not

remain cabined is consistent with an expectation that courts will apply

a single standard to public speech.

The Seventh Circuit issued a narrow preliminary injunction and

adhered to principles of judicial minimalism by not reaching beyond

the facts of the case to craft a comprehensive theory of First Amend-

ment privacy in public speech. Nevertheless, both opinions should

have adopted approaches that would have prompted courts to consider

more carefully the nature of the speech the ACLU sought to record.

Even if greater attention to the specific details of the speech would not

have altered the judgment in either opinion, an approach that focuses

on such details rather than categorizing speech as either public or pri-

vate could provide the foundation for a more flexible standard of pri-

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

law’s constitutionality or left it still too broad to pass muster. See Alissa Groeninger, Illinois

Struggles to Replace Outdated Eavesdropping Law, C

. T

RIB

., June 24, 2012, at 10, available at

http:// articles. chicagotribune .c om/ 2012-06-24 /news/ ct-met- illinois- eavesdropping -law- 20120624_ 1

_eavesdropping-law-noland-law-enforcement.

Alvarez, 679 F. 3d at 614 (Posner, J., dissenting).

Id. at 613. Although some people who speak to the police may expect privacy, the lenient

standards that allow the police to record their interactions with the public, see 720 I

. C

OMP

TAT

. 5/14-3(g) (2010), and the tendency of police to memorialize and later testify to their conver-

sations, see Alderman, supra note 6, at 516, strongly suggest that citizens reasonably ought to ex-

pect less privacy in speaking with police than they do in conversations with friends.

Alvarez, 679 F. 3d at 612 (Posner, J., dissenting) (quoting United States v. White, 401 U.S.

745, 787–88 (1971) (Harlan, J., dissenting)); see also id. at 611 (describing the potential conversa-

tional partners of police as suspects, victims, witnesses, and so forth).

Id. at 613.

1168 HARVARD LAW REVIEW [Vol. 126:1162

vacy that responds to technological advancements in recording,

iden-

tifying,

and disseminating

information that is admittedly “exposed

to the public” in a limited way. The fiction that there is no difference

between being heard and being recorded may have proved tolerable

only when the vast majority of the public could reliably avoid a wider-

than-intended audience. When legislatures seek to preserve more of

their constituents’ privacy than judicial doctrine already protects, the

courts should respond with a careful, nuanced analysis of the constitu-

tional limits on such laws.

In order to more flexibly identify the privacy interests in public

conversations, either opinion could have started from the premise that

“[p]rivacy is not a discrete commodity, possessed absolutely or not at

all.”

If the court had directly considered gradations of privacy, it

could have distinguished speech that is pointedly public, such as a pro-

testor’s chant, from speech that is anonymously public, such as a con-

versation in a crowded bar. Many cases will fall between these para-

digmatic examples, but neither opinion here advanced the challenges

of line drawing as a reason to lump together all public speech. A more

nuanced approach would comply with both the purposivist approach

to the First Amendment,

by limiting the government’s ability to con-

strain speech about important public events, and the pragmatic ap-

proach,

by avoiding many of the “significant social costs”

of an un-

restrained right to eavesdrop.

Although distinguishing pointedly public speech from anonymously

public speech would represent a doctrinal development,

it could

draw support from recent Fourth Amendment cases. In United States

v. Jones,

five Justices (writing across two noncontrolling concurrenc-

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

See, e.g., id. (“[T]he typical recorder nowadays is a cell phone . . . hidden in plain view.”).

See, e.g., Note, In the Face of Danger: Facial Recognition and the Limits of Privacy Law,

120 H

ARV

. L. R

. 1870, 1874 (2007) (describing the rise of facial recognition search engines).

See, e.g., Jonathan Zittrain, Privacy 2.0, 2008 U. C

. L

EGAL

F. 65, 83 (describing the

online spread of a Canadian teenager’s embarrassing “Star Wars Kid” video).

Smith v. Maryland, 442 U.S. 735, 749 (1979) (Marshall, J., dissenting).

See generally Jed Rubenfeld, The First Amendment’s Purpose, 53 S

TAN

. L. R

. 767 (2001)

(advancing a theory of First Amendment jurisprudence in which the state’s purposes in passing a

specific law are dispositive of that law’s constitutionality).

See generally Richard A. Posner, Comment, Pragmatism Versus Purposivism in First

Amendment Analysis, 54 S

TAN

. L. R

. 737 (2002) (describing First Amendment law as primarily

“a product of . . . trying to reach results that are reasonable in light of their consequences,” id. at

739).

Alvarez, 679 F. 3d at 614 (Posner, J., dissenting).

Fourth Amendment and tort definitions of privacy generally embrace the bright-line rule

that what is exposed to any member of the public is flatly not private. See, e.g., R

ESTATEMENT

ECOND

)

ORTS

§ 652D cmt. b (1977) (denying “liability for giving further publicity to what

the plaintiff himself leaves open to the public eye”). Contra Alvarez, 679 F. 3d at 611 (Posner, J.,

dissenting) (“In some instances such publicity would violate the tort right of privacy.”).

132 S. Ct. 945 (2012).

2013] RECENT CASES 1169

es) chipped away at the bright-line rule that exposure to the public

erases all Fourth Amendment privacy rights, finding that installing a

GPS device on a car was a search, although it revealed no more than

the location of the vehicle on public roads.

Concurring opinions by

Justices Sotomayor and Alito

acknowledged a privacy interest in the

location of a vehicle on public roads, despite the fact that the car’s trav-

el was exposed to public view.

Justice Sotomayor explicitly distin-

guished gathering the location evidence via a GPS device from doing

the same “through lawful conventional surveillance techniques,”

thus

highlighting the ability of technology to change the privacy calculus.

To be sure, the concurring opinions in Jones are not controlling

precedent for First Amendment challenges to eavesdropping statutes

enforceable against the public. If the Supreme Court has in fact sig-

naled a willingness to recognize privacy interests enforceable against

law enforcement officers in information exposed to the public only in a

limited, likely-to-be-forgotten way, it does not follow that such infor-

mation is unambiguously private. It would be facile to posit a general

right to anonymity, such that the Illinois eavesdropping statute was

constitutionally required; both opinions understood the First Amend-

ment as primarily a source of negative liberty, the right to be free from

certain government prohibitions.

Nevertheless, even if the Constitu-

tion does not mandate that states protect citizens’ rights to speak

anonymously in public, “it need not be hostile to legislative attempts to

achieve positive liberty.”

Analyzing privacy protections of speech

that occurs in public according to a sharper standard would help en-

sure that the judiciary does not overuse its exclusive First Amendment

means, invalidation of suppressive laws, at the expense of the First

Amendment’s ends, free speech.

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

See id. at 957 (Sotomayor, J., concurring) (“[I]t may be necessary to reconsider the premise

that an individual has no reasonable expectation of privacy in information voluntarily disclosed to

third parties.”); id. at 964 (Alito, J., concurring in the judgment) (“[T]he use of longer term GPS

monitoring in investigations of most offenses impinges on expectations of privacy.”); see also

United States v. Maynard, 615 F. 3d 544, 562–65 (D.C. Cir. 2010) (using a “mosaic theory,” id. at

562, in which the whole is greater than the sum of its parts, to define a search).

Justice Alito was joined by Justices Ginsburg, Breyer, and Kagan.

See Jones, 132 S. Ct. at 948 (describing the trial court’s denial of a motion to suppress in-

formation gathered while the vehicle was “on public thoroughfares”) (quoting United States v.

Jones, 451 F. Supp. 2d 71, 88 (D.D.C. 2006)).

Id. at 956 (Sotomayor, J., concurring).

See Alvarez, 679 F. 3d at 597, 605–06 (describing the statute as a limit on the information

available to the public and thus prohibited unless narrowly tailored); id. at 610 (Posner, J., dis-

senting) (“[T]he First Amendment merely forbids Congress to abridge free speech.”). For a com-

parison between this liberty conception of free speech and an alternative equality conception, see

Kathleen M. Sullivan, Two Concepts of Freedom of Speech, 124 H

ARV

. L. R

. 143 (2010).

Daniel J. Solove, The Virtues of Knowing Less: Justifying Privacy Protections Against Dis-

closure, 53 D

UKE

L.J. 967, 997 (2003).