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Audio recording law: Brazenly unconstitutional

By Scott Tibbs, February 24, 2012

A woman records police officers in an attempt to strengthen her claim of sexual harassment. Most people would see this as a smart way to protect herself and ensure justice is done. In the state of Illinois, she is committing a felony that could cause her to spend 15 years in prison for this action, which harmed no one.

This law protects corrupt government officials in addition to being unconstitutional, immoral and anti-democratic.

The violation of the First Amendment's protections for free speech is obvious. Government simply does not have the legal authority to criminalize the action of documenting abuse of power by agents of the state.

This law also violates the 14th amendment's requirement of equal protection under the law, because of the exception for radio and television recordings. The "logic" here is an outdated perception of what the press is. In an age where someone can post a video on YouTube and get a million hits, distinguishing between the traditional news media and an average citizen is increasingly meaningless. Furthermore, carving out an exception for radio and television broadcasts grants special rights to the media that average citizens do not have, which is anathema to our constitutional republic.

The best way to ensure government operates in a legal and ethical manner, to say nothing of being efficient and reliable, is by exposing government to the disinfectant of sunshine. By making it illegal to record agents of the state in the context of their employment, Illinois is protecting bad actors and denying citizens the opportunity to seek justice when wronged.

Think about the case of Rodney King, who was beaten by Los Angeles police officers while another citizen captured the beating on film. Had George Holliday not recorded the beating, would the officers have ever been charged and tried for the beating? Would the officers have been convicted in federal court of violating King's civil rights? Or would this have been swept under the rug? It is certainly possible that nothing would have ever come of this case of not for Holliday's video camera.

There should not be a court battle over this law. It is a waste of time and taxpayer dollars to litigate the constitutionality of this law. Instead, the Illinois state legislature should unanimously vote to reform it, at least providing an exception for recording government employees in the context of doing their jobs. Any legislator who votes against reform should be thrown out of office in a landslide.