Chris Drew being arrested
Chris Drew being arrested

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.

There’s never been anything covert about Chris Drew’s long-running campaign to make it easier for artists to sell their work legally on the streets of Chicago. For years now he’s been talking the ear off anyone who’ll listen, railing against the city’s regulations, which require artists to obtain a peddler’s license plus a 30-day permit and advance approval of the artwork all for the privilege of hawking at a restricted number of less-than-optimal spots. Drew has a vision of a different Chicago, one with an open-air art scene as vibrant and busy as the one in Paris.

When I last reported on him, in this column in 2008, Drew was calling attention to the city’s restrictions—which he regards as an infringement on First Amendment rights—by setting up on one bustling sidewalk after another, giving away screen-printed patches pushing his art-is-speech message and documenting it all to prove that it could be done without causing pedestrian gridlock. He was also collecting signatures on a petition that called for changing the law and searching for a pro bono lawyer who might help him get it done. It was a thankless, mostly lonely struggle. Chicago’s artists didn’t exactly rally to the cause. And most pedestrians breezed past, as oblivious to this scruffy graybeard as they’d be to any street preacher or eccentric.

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.

Drew had failed to consider the bizarre, selectively enforced Illinois Eavesdropping Act—the violation of which can result in a first-class felony charge carrying a possible 15 years in prison. Now he’s the poster boy for a cause he didn’t know existed when he was taken into custody. By the time of his first court hearing, on December 9, the Cook County state’s attorney had dropped the peddling charge and was going after Drew for eavesdropping on his own arrest.

The evidence against him was in one of the sandwich bags filled with art patches and pinned to his poncho: a digital recorder that caught the audio portion of the bust.

Laws regulating the use of recording devices are under scrutiny everywhere now that cell phones have video capability and images of cops—and the rest of us—behaving badly are all over the Internet. But there are a couple of remarkable things about the one in Illinois. It requires the consent of everyone involved before an audio tape can be made—most states require the consent of only one party. And thanks to a 1994 amendment that makes it nearly unique in the nation, it doesn’t distinguish between public and private conversations.

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.

Part of a 1994 omnibus crime bill sponsored by former Chicago police detective Wally Dudycz, then a northwest side state senator, the amendment was a pointed response to a 1986 case (People v. Beardsley) in which the Illinois Supreme Court ruled that what a cop says during a traffic stop isn’t private and therefore can be recorded for use as evidence. And in practice it’s been used to discourage civilians from documenting police activity in at least three other Illinois counties: Champaign (where the offenders were documentary filmmakers), Crawford, and DeKalb.

Drew was represented in court by civil rights attorney Mark Weinberg, who had good credentials for the job. Weinberg is the author of Career Misconduct, a book critical of former Blackhawks president Bill Wirtz, and battled all the way to the U.S. Supreme Court for his right to sell it on the street in front of the United Center. He won when the justices let an appellate decision in his favor stand.

At a hearing in May, Weinberg tried to get the felony charge dismissed. He argued that the public’s right to monitor official police conduct outweighs any claim of privacy on the cops’ part and that First Amendment news-gathering rights should apply. Circuit court associate judge Stanley Sacks sided with the state’s attorney. He denied the motion to dismiss, noting in his decision, “You can’t violate the law to make a point.” Since then, Drew has acquired a criminal attorney, Joshua Kutnick, to work in tandem with Weinberg. In a hearing scheduled for September 22 (the day after the Reader went to press), Kutnick hoped to quash the audio evidence on constitutional grounds, arguing that the police had no right to listen to the recording without a warrant. If that works, the case will be over, with the larger issue of the eavesdropping act’s validity unaddressed.

“The principles Chris stands for and his best interests in this criminal case could be at odds,” Kutnick says. “He’s looking at four to 15 years in the penitentiary. My main job is to keep him out of prison.”

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.

Most reports of abusive behavior by police come down to he-said-she-said, ACLU senior staff counsel Adam Schwartz notes, citing the report of Chicago’s Independent Police Review Authority for the year ending September 2009. “About 1,000 people swore out affidavits to get a full investigation going,” Schwartz says, and “of those 1,000, about two thirds ended in a finding of ‘not sustained’—which means the IPRA couldn’t figure out whether the event happened or not. The officer says one thing and the civilian says another, and that’s the end of it. So it’s natural and proper for people to want to have their own audio recording of these encounters,” which could provide “critical evidence.”

As Drew sees it, “the history of this law’s use is abuse.” In his case, he says, “this state is trying to get rid of a longterm social critic using this law. And that’s what should shock anybody who grew up in this country believing in the constitution.” Drew is inviting public comment on the case at his own annual event, the T-Shirt Art Harvest Festival, running September 24-26 at the American Indian Center, 1630 W. Wilson. According to his website, statements “will be posted online to illustrate the decision of the Court of Public Opinion.”