Reconsidering the Gathering/Publication Dichotomy: Recording as Speech? What Next?
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The First Amendment information-gathering right has always been inferior to the long-established right to speak and publish. As such, the danger has been that a court concerned, for example, with prejudicial publicity could characterize the issue as gathering instead of publication—and apply a more relaxed standard. Indeed, the transparent concern in most gathering cases has been with the ultimate publication. When states defend statutes prohibiting recording without the consent of all parties to a conversation, the asserted “privacy” interests are generally not threatened by the physical act of recording, but by the disclosure of the content of the recording. Thus, when the State of Illinois attempted to defend its Eavesdropping Act, even when the recordings would be of police officers performing their duties in public, the Court of Appeals for the Seventh Circuit dismissed the privacy interests, conflated gathering and expression, and provided a roadmap for future courts to analyze such cases as direct threats to freedom of speech.