Moore's prosecution is one of the cases that the American Civil Liberties Union of Illinois cites in its challenge to the eavesdropping law. It is asking the U.S. Court of Appeals for the Seventh Circuit to rule that "the First Amendment protects people from criminal penalty for openly audio recording the conversations of police officers in the performance of their official duties in public places and forums, while speaking at an ordinary volume -- that is, conversations where there is no reasonable expectation of privacy."
The ACLU says this standard, which the vast majority of states have adopted, is required by the First Amendment. Last month, in an eavesdropping case involving a man who recorded an arrest on the Boston Common because he believed the police were using excessive force, the U.S. Court of Appeals for the First Circuit agreed that "a citizen's right to film government officials, including law enforcement officers, in the discharge of their duties in a public space is a basic, vital and well-established liberty safeguarded by the First Amendment."
Fortunately for Michael Allison, a Crawford County judge found that argument persuasive. "A statute intended to prevent unwarranted intrusions into a citizen's privacy cannot be used as a shield for public officials who cannot assert a comparable right of privacy in their public duties," Circuit Judge David Frankland wrote two days after the Seventh Circuit heard the ACLU's arguments against the eavesdropping law. "Such action impedes the free flow of information concerning public officials and violates the First Amendment right to gather such information."
Although Frankland dismissed the charges against Allison, prosecutors are expected to appeal, lest uppity citizens get the idea that it's OK to document the public performance of public officials.
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