Recording the Police: Wookiee tested, Gangster approved!

This is Chewbacca.

Chewbacca is a Wookiee, from the planet Kashyyyk. But Chewbacca lives on Endor. That does not make sense. Why would an eight foot tall Wookiee want to live with a bunch of 3 foot tall Ewoks? That does not make sense. Why am I talking about Chewbacca? That does not make sense.

That is roughly the substance of the opening to the famed Chewbacca defense, employed by Johnny Cochrane in defense of Capitalist Records in their case against Chef over the rights to the song “Stinky Britches.”

So what does the Chewbacca defense have to do with recording the police?

Nothing.

Which is about what a generally bright 7th Circuit judge’s statements and questions had to do with the substance of an ACLU argument before a 3-judge panel last week. Judge Posner and two others heard oral argument last Tuesday in the ACLU’s constitutional challenge to the Illinois wiretapping law that makes it illegal to make audio recordings of anyone anywhere, including police in public, without their consent, and Posner was not making a whole lot of sense.

The ACLU’s argument is pretty focused and simple to understand: When police are in public performing public duties, under current Illinois law, individuals are allowed to film them, photograph them, listen to them, and even take copious detailed notes on their conversations. But the Illinois wiretapping law makes it a crime to make an audio recording of the same activity. Because the governmental interest in this incremental regulation is insufficient to outweigh the First Amendment right to gather information of public concern in public, the wiretapping law is unconstitutional.

Let me repeat that we are dealing with public officials conducting public business out in public.

So what were Judge Posner’s main concerns during the argument (click here to listen to the actual arguments for yourself)?

1. The first thing he brought up, interrupting ACLU’s counsel before he even uttered a full sentence, was the privacy interest of the third party who is speaking to police. Posner repeatedly voiced concerns that a person who is speaking to police out in public has a privacy interest in the speech (I’m with him so far) that would be violated by audio recording but not by eavesdropping and transcribing the entire conversation verbatim. That does not make sense.

2. Another issue Posner brought up was the potential effect on police operations. Specifically, he presented the hypothetical of a police officer speaking to a confidential informant whose identity the police have a very strong interest in protecting. In public. Where people can film, photograph, and listen to the entire interaction. IN PUBLIC. Here, I will quote the ACLU attorney: “That doesn’t make any sense.”

3.  My personal favorite issue that Posner raised is that gangsters will “rejoice” in the ACLU’s rule if they prevail. Try to follow the logic here: a gangster might see another gangster talking to the cops. Under the current statutory scheme, that gangster could legally film, take pictures, take notes, etc., but could not create an audio recording. So the gangster sees this interaction and goes back to the gang headquarters and tells the other gangsters what he saw AND HEARD. Without proof, the other gangsters might just disregard what he tells them because they think the alleged snitch is a “good guy.” HOWEVER, if the ACLU wins this case, the gangster could create an audio recording to take back to gang headquarters and the informant gangster would be totally screwed. Therefore, the ACLU’s proposed rule change is bad.

THAT DOES NOT MAKE SENSE.

4.  At the close of the ACLU’s rebuttal, the very last question that Posner posed was essentially “what about a couple walking down the street talking about sex, and anyone can just go up and record and broadcast that conversation?” Counsel responded correctly that Posner’s hypo has nothing to do with the First Amendment argument at hand – no public official and no matter of public concern.  To which Posner responded “I don’t know. People are interested in sex.”

Touché. That one I can’t really argue.

As for the rest of Posner’s concerns, if Chewbacca lives on Endor, you must acquit.

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