On August 19, 2010, the ACLU of Illinois filed a lawsuit in the U.S. District Court for the Northern District of Illinois, under 42 U.S.C. § 1983 and the Declaratory Judgment Act, 28 U.S.C. § 2201, against the Cook County State's Attorney. The ACLU, represented by its own attorneys and private counsel, sought declaratory and injunctive relief, alleging that the Illinois Eavesdropping Act violated the First Amendment of the United States Constitution.

The Illinois Eavesdropping Act criminalized non-consensual audio recording of oral communication of others. The ACLU intended to record police officers performing their duties in public without their consent and make the recordings available to the general public. Due to its fear of prosecution under the Act, the ACLU sought to challenge the statute and this started the lawsuit.

On October 28, 2010, the District Court (Judge Suzanne B. Conlon) granted the State's Attorney's motion to dismiss the lawsuit for lack of standing. ACLU of Illinois v. Alvarez, 2010 WL 4386868 (N.D. Ill. 2010). The Court denied the ACLU's motion to alter the judgment and to amend the complaint on January 10, 2011. ACLU of Illinois v. Alvarez, 2011 WL 66030 (N.D. Ill. 2011). Judge Conlon held that the ACLU suffered no First Amendment injury, reasoning that the First Amendment did not protect its right to audio record unwilling speakers. The ACLU appealed the decision to the Seventh Circuit.

On May 8, 2012, the Seventh Circuit Court (Diane S. Sykes) reversed the lower court's judgment and remanded the case. ACLU of Illinois v. Alvarez, 679 F.3d 583 (7th Cir. 2012). The appeals court ordered the district court to allow the amended complaint and to issue a preliminary injunction preventing the State's Attorney's prosecution of the ACLU under the Act. Judge Sykes explained that the lower court abused its discretion in its ruling regarding the ACLU's standing. The Court of Appeals found that audio recording was entitled to First Amendment protection, and that the willingness of the speakers was irrelevant to the standing issue.

Regarding the ACLU's First Amendment claim, the Seventh Circuit found that the First Amendment interests were strong in this case and that a heightened scrutiny applied. The Act burdened directly the speech and press rights under the First Amendment, and was not closely tailored to the government's interest in protecting conversational privacy. Judge Richard A. Posner dissented, focusing on the importance of privacy, especially that of the civilians interacting with police officers in public. (The State sought Supreme Court review, but its certiorari petition was denied on November 26, 2012.)

On remand, the case was reassigned to Judge Sharon J. Coleman. On July 6, 2012, Judge Coleman issued a preliminary injunction according to the appellate court's order. The ACLU filed its amended complaint on July 10, 2012. On December 18, 2012, the District Court granted summary judgment to the ACLU for reasons set forth in the appellate opinion. ACLU of Illinois v. Alvarez, 2012 WL 6680341 (N.D. Ill. 2012). Judge Coleman further ordered a permanent injunction in favor of the ACLU on January 14, 2013, which prohibited the State's Attorney from prosecuting the ACLU for its audio recording of on-duty police officers without their consent in public. On March 5, 2013, Judge Coleman ordered the State's Attorney to pay the ACLU in sum of $645,549 for attorneys' fees and litigation costs. This ended the case.

Emma Bao - 06/20/2013


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