Eugene Volokh mentions a ruling in ACLU v. Alvarez (N.D. Jan. 10, 2011) that will probably disappoint many of this blog’s readers. Here’s a snippet of the opinion:
To assist in deterring and detecting police misconduct, the ACLU has developed a program to “audio record police officers, without the consent of the officers, when (a) the officers are performing their public duties, (b) the officers are in public places, (c) the officers are speaking at a volume audible to the unassisted human ear, and (d) the manner of recording is otherwise lawful.”
The ACLU intends to audio record police officers speaking with one another or police officers speaking with civilians. The ACLU’s program only implicates conversations with police officers. The ACLU does not intend to seek the consent of either police officers or civilians interacting with police officers. Police officers and civilians may be willing speakers with one another, but the ACLU does not allege this willingness of the speakers extends to the ACLU, an independent third party audio recording conversations without the consent of the participants. The ACLU has not met its burden of showing standing to assert a First Amendment right or injury….
Amendment would be futile. The ACLU has not alleged a constitutional right or injury under the First Amendment. Rather, the ACLU proposes an unprecedented expansion of the First Amendment….
Read more on The Volokh Conspiracy. Note that this ruling is not about the right of an individual to audio record their interactions with the police, but about the rights of a non-involved third party to record the interactions of others.