Why Judge Conlon was Wrong in ACLU v. Alvarez (The Illinois Wiretapping Law Challenge)
This past January, Judge Suzanne B. Conlon handed down an opinion holding that recording police in public does not implicate the First Amendment. ACLU v. Alvarez, No. 1:10-cv-05235 ECF 42, 7-8 (N.D. Ill. January 10, 2011). As a result, the ACLU-IL had no standing to challenge the practice of criminalizing recording police in public through the Illinois wiretapping law because they showed no harm. Id. 
I do have empathy for judges. Even Judge Conlon, who allegedly fired one clerk for refusing to carry her lunch up 17 flights of stairs and allegedly fired another for evacuating as ordered on 9-11. Judges have to be generalists, and routinely have to write about areas of law outside their expertise. On top of that, Judge Conlon supposedly keeps a rigorous docket schedule. So, given both the time pressure and generalist nature of judges, I shouldn’t be surprised to such an opinion.
The First Amendment arguments are at 7-8. Let’s take a look.
Almost all judicial opinions on the right to record police are bare on reasoning, even the really good ones, like Smith v. City of Cumming. But Conlon’s reasoning is exceptionally thin. From Potts v. City of Lafayette, Judge Conlon plucks, totally out of context, the general language that “there is nothing in the Constitution which guarantees the right to record a public event.” Potts v. City of Lafayette, Ind., 121 F.3d 1106, 1111 (7th Cir. 1997); but see Blair v. City of Evansville, Ind., 361 F. Supp. 2d 846 (S.D. Ind. 2005). Yet look at the Potts opinion itself.
The Potts court takes pains to explain that reasonable time, place and manner restrictions were appropriate in that instance because “KKK rallies, by their very nature, breed violence.” Potts, 121 F.3d at 1111. In other words, the First Amendment did apply in Potts. There is a cognizeable harm if Potts controls.
Further, in Potts, the restraint was reasonable because of the safety interest and (apparently) content-neutral restraint. The court in Potts explains that the restraint was narrowly tailored to the safety interest, and didn’t inhibit substantially more speech than was necessary to advance the safety interest . On the other hand, Judge Conlon in her opinion does not explain how “the means chosen [by Illinois authorities] are not substantially broader than necessary to achieve the government’s interest” (and what exactly is the government interest here anyhow?). Potts, 121 F.3d at 1112.
Moreover, reasonable time, place, and manner restrictions only apply to content-neutral restraints, where the content of a media is not at issue. Suppressing recordings of police like this is at least arguably content-based, which would invalidate a content-neutral claim. Do the police suppress public recordings of people who are not police? Really?That doesn’t seem to be how the law is actually enforced. 
And we haven’t even reached the problem of official discretion yet. See FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 223 (1990) ( the “unbridled discretion [of] the decisionmaker” meant that the content-neutral restriction was analyzed as a prior restraint with a very heavy presumption of invalidity), Lovell v. City of Griffin, Ga., 303 U.S. 444, 450 (1938) (invalidating a content-neutral prior restraint because officials had total discretion). Are there any bounds to official discretion in enforcement here? Can officials let whoever they want off the hook? The First Amendment is wise to the danger of content- and viewpoint-based discrimination such discretion poses.
Does Judge Conlon seriously suppose that taking video in no way articulates with the First Amendment? I can’t really tell from her reasoning–it’s all too short.
If the Seventh affirms, and I doubt it will, it will be on very different reasoning. I think, though this conclusory bit of judicial legerdemain will only make the First Amendment disappear for a little while, like the white rabbit in a stage magician’s hat.
Note: Eugene Volokh blogged briefly about this case when it came out.
 Okay, in the fine print, the court held that the ACLU-IL could not amend its complaint because the amendment would not cure this supposed standing deficiency.
 I am not sure whether the Potts court came to the right result here, but let’s assume for now that it did.
 Actually, I’d further argue viewpoint-discrimination, but I’ll address that in a forthcoming post.