As technology advances, millions of Americans now carry a recording device on their person. The ease with which private conversations can be recorded and disseminated without the permission of the speakers has sparked a backlash of legislation criminalizing the act of recording oral communications. These statutes, in an attempt to defeat an expanding problem, impede an individual's First Amendment right to audio record speech.
The Illinois Eavesdropping Law (IEL), the broadest piece of eavesdropping legislation in the nation, prohibits recording speech, even if that speech was not intended to be private. The American Civil Liberties Union challenged the statute's validity and argued that people have a First Amendment right to record police officers performing their public duties. The Seventh Circuit, in granting a preliminary injunction for the ACLU, considered the constitutionality of the IEL and found that the statute likely violates the First Amendment. However, in holding so, the Seventh Circuit categorized the right to audio record speech as free expression, rather than the limited First Amendment right to gather information. This Comment proposes that while the Seventh Circuit was correct in holding that the statute was likely unconstitutional, the court should, in conjunction with other circuits, characterize the right to record as a limited right to gather information under the First Amendment.
The Right to Speak with Another's Voice—Why the Seventh Circuit Should Characterize the Right to Record as the Limited Right to Gather Information Under the First Amendment,
Seventh Circuit Rev.
Available at: https://scholarship.kentlaw.iit.edu/seventhcircuitreview/vol8/iss2/7