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Thursday, May 10, 2012

Recording, the First Amendment, and Judge Posner

On Tuesday, a divided Seventh Circuit panel invalidated an Illinois eavesdropping statute that prohibited all recording of conversations without two-party consent, including conversations involving police officers performing public duties in public spaces. I wrote about the case here and here and have had an interest in the front-end protections for recording for a few years.

The decision is going to spark discussion for two things. One is the very sweeping First Amendment approach from the majority. The other is the equally sweeping dissent by Judge Posner.

First the majority. The tricky part in the debate over First Amendment protection for recording is finding a place withint the text of the amendment to ground the protection, since the act of recording is not, in itself, speech. In my article, I suggested both the Press Clause (riffing off an argument by Barry McDonald) or the Petition Clause, at least where the video is or may be used in civil liitgation. The Seventh Circuit went broader:

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. The right to publish or broadcast an audio or audiovisual recording would be insecure, or largely ineffective, if the antecedent act of making the recording is wholly unprotected.

The court compared this to a prohibition or regulation of printers' ink or, more interestingly, to regulation of campaign finance--all recognize protection for acts and things that, while not speech, enable speech. I appreciate the breadth of the argument. Note that it assumes that the recording is going to be published and used for speech, which is not always or necessarily the case--as where the recording is going to be used as evidence in an official complaint against an officer or in litigation (hence my Petition Clause argument). And the court did not require any inquiry into the ultimate use. Still, to the extent all of thse are First Amendment protected, the argument makes snese.

From there, the court held that the law was content neutral, but failed intermediate scrutiny (which is not always easy to do) for a couple of reasons. First, it banned an entire medium of communication/information gathering. Second, the state's privacy interests were undermined by the fact that other ways of documenting public conversations--including listening and taking notes, video recording, and still photography--were not prohibited, even though they potentially implicate those interests. The accuracy and immediacy of audio recording (as compared with human memory) did not alter the privacy calculations. And, although the court did not reach the issue of alternative means of communication, it noted that

audio and audiovisual recording are uniquely reliable and powerful methods of preserving and disseminating news and information about events that occur in public. Their self-authenticating character makes it highly unlikely that other methods could be considered reasonably adequate substitutes.

It is contestable whether recordings are inevitably or unquestionably accurate or clear. But adequate alternative means typically should not allow the prohibition of one entire medium simply because other, different, not-always-as-effective media remain available.

Now to Judge Posner. No surprise that he dissented, given some questions he asked during oral argument. The surprise is the opinions assault on modern First Amendment doctrine, his endorsement of (or at least reference to) a more limited originalist understanding of the First Amendment, and his criticism of rigorous First Amendment judicial review and courts' regular willingness to invalidate a broad range of laws on First Amendment grounds.

A sampling of comments:

The invalidation of a statute on constitutional grounds should be a rare and solemn judicial act, done with reluctance under compulsion of clear binding precedent or clear constitutional language or—in the absence of those traditional sources of guidance—compelling evidence,
or an overwhelming gut feeling, that the statute has intolerable consequences.

* * *

Judges asked to affirm novel “interpretations” of the First Amendment should be mindful that the constitutional right of free speech, as construed nowadays, is nowhere to be found in the Constitution. The relevant provision of the First Amendment merely forbids Congress to abridge free speech, which as understood in the eighteenth century meant freedom only from
censorship (that is, suppressing speech, rather than just punishing the speaker after the fact). A speaker could be prosecuted for seditious libel, for blasphemy, and for much other reprobated speech besides, but in a prosecution he would at least have the protection of trial by jury, which he would not have if hauled before a censorship board; and his speech or writing would not have been suppressed, which is what censorship boards do. Protection against censorship was the only protection that the amendment was understood to create. . . .

The limitation of the amendment to Congress, and thus to federal restrictions on free speech (the First Amendment does not apply to state action), and to censorship is the original understanding. Judges have strayed so far from it that further departures should be undertaken with caution.

This is surprising stuff. For one thing, Posner himself has joined or written a number of decisions striking down laws on First Amendment grounds and adopting a broader view of free speech than he suggests in these quoted portions. For another, it seems beside the point in this case. The bulk of the dissent is devoted to emphasizing the privacy interests involved here and arguing, in essence, that the majority did not accord them sufficient weight in the balance. While perhaps right, it is much different than arguing that applying the First Amendment to something like audio or video recording is a vast or novel expansion of the right. Perhaps the point is that the majority did not sufficiently acknowledge the novelty of the First Amendment claims or interpretations here.

The dissent does reflect Posner's pragmatism. For example, he suggests that a judicial "gut feeling that the statute has intolerable consequences" is enough for invalidating a law. He also seems to acknowledge that the case would be different if the recordings were being used to record unlawful activity, such as police misconduct. So maybe his comments are not as far reaching as they seem. And he is, of course, correct that modern free speech does not look anything like Blackstone or what many may have expected in 1791. But I, and most others, would say we are better off for that.

An interesting rhetorical flourish from a judge known for them.

Posted by Howard Wasserman on May 10, 2012 at 11:16 AM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink


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Fantastic--I'm putting the quote about "an overwhelming gut feeling" as a bonus question on my legal philosophy final tomorrow. (We ended the semester discussing Posner's pragmatism.)

Posted by: Mark D. White | May 15, 2012 8:26:22 PM

I thought Posner didn't respect originalism much.

Posted by: Joe | May 10, 2012 6:48:27 PM

Maybe. Although none of the justices is ever truly originalist on the First Amendment.

Posted by: Howard Wasserman | May 10, 2012 1:17:54 PM

Any chance at all this goes up to the Supreme Court? Perhaps Posner is throwing a bone to the originalists, because it's pretty clear, as a self-proclaimed pragmatist, he generally has no use for the doctrine.

Posted by: q | May 10, 2012 12:39:55 PM

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