A Terre Haute station interviews Michael Allison, the Illinois man facing up to 75 years in prison for making audio recordings of on-duty police officers and other public officials. Allison was the main subject of my January Reason feature, “The War on Cameras”.
The report gets a few things wrong, most notably the assertion recording cops is “illegal in a dozen states”. A dozen states require all parties to consent before you can record a conversation, but all except Illinois and Massachusetts have an “expectation of privacy” provision that the courts to this point have ruled does not apply to on-duty police officers (or anyone in a public setting). That hasn’t stopped police from arresting people in those states (and others) anyway. But the charges don’t hold up in court.
This isn’t a distinction without a difference. When a media outlet reports that recording cops is “illegal” in these states (and the Terre Haute station is not the first to do so), it adds to the public perception that doing so is, in fact, illegal. This makes it more difficult to hold police officers accountable when they disregard the law. In order to overcome a police officer’s qualified immunity in a lawsuit for wrongful arrest, you have to show that a reasonable person (not a reasonable police officer) should have known that the arrest was in violation of clearly established law. When media outlets continue to incorrectly report that recording cops is illegal in these states, they contribute to public confusion about the law—and thus make it more difficult for people who have been wrongly arrested to argue in court that a reasonable person should have known that the arrest was illegal.
The reporter’s characterization of his amusing confrontation with a deputy in the courthouse is also incorrect. The reporter says they were advised by attorneys not to air the audio of the conversation because of the same law under which Allison is being prosecuted. But if they did make a recording of their interaction with the deputy, they’d be subject to prosecution regardless of whether or not they actually aired the audio.
Still, points for effort. This is a seven-and-a-half minute report from a local news station about an important issue that takes a skeptical view of law enforcement. That’s pretty rare.
I’ll have more about recent developments in the Illinois eavesdropping law in a forthcoming piece for Huffington Post.