UPDATE: Chris Drew appeared in court on Wednesday, September 22, where a tentative date of October 22 was set for a hearing on his motion to suppress evidence derived from a recording device police confiscated from him.
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By last winter Drew had taken his campaign into a new phase, mounting a direct challenge to the peddling law by provoking a test case. On December 2, 2009, he planted himself on one of Chicago’s most iconic and heavily trafficked blocks—the State Street side of Macy’s when the Christmas window displays were up—and blatantly invited arrest. Outfitted in a Santa-red poncho festooned with his screen prints and a sign that proclaimed art for sale, he hawked his works for a buck apiece under the beat cops’ noses until they took the bait. With a videographer and a photographer immortalizing the moment (you can still find it on YouTube), they confiscated the poncho, put him in cuffs, and loaded him into an unmarked car. He went peaceably, expecting to be charged with the misdemeanor of violating the peddling law.
And that’s where things took an unexpected turn.
So if you’re standing on a street corner in Illinois with a tape recorder running, and you pick up a conversation between two people standing next to you, talking openly, you’re arguably violating the law.
Kutnick says that should his illegal-search-and-seizure argument prevail, there are other pending cases that could still test the eavesdropping law. One of them was filed last month by the American Civil Liberties Union of Illinois against Cook County state’s attorney Anita Alvarez, challenging the constitutionality of the act and citing Drew’s case, among others. The ACLU suit argues, as Weinberg did, that the First Amendment grants the public the right to “gather, receive, and record information,” and that the use of audio recorders simply continues the practice with current technology. It also makes the case that since “many police squad cars are equipped with audio/video recording devices that document traffic stops,” there’s a double standard in force.The suit asks for a “declaratory judgment that the [Eavesdropping] Act violates the First Amendment” when it’s applied to the recording of police officers at work, speaking at normal volume in a public place.
