It’s official: the draconian Illinois eavesdropping law is dead, wiped off the books by the state’s Supreme Court earlier today in a ruling that stated the law was not only unconstitutional but way too broad, criminalizing the recording of conversations in places where there is no expectation of privacy.
So now with no law in the books, Illinois citizens can record each other – even in places where they do have an expectation of privacy – and even publishing those recordings, making it no different than other states with one-party consent laws, which allow the recording of others as long as one person in the conversation is aware of the recording.
That is, until the Illinois legislature drafts a new statute.
Today’s decision comes two years after a federal appeals court issued a preliminary injunction forbidding police from arresting citizens who record them in public, something they had been doing with alarming regularity at the time.
But that decision did not address the recording of other public officials, which is what brought this case to light.
The case involves Annabel Melongo, who recorded three telephone conversations she had with a court reporter supervisor at the George Leighton Criminal Courts complex.
Melongo called to correct an apparent error in a court transcript, then posted audio of the phone calls on a website she’d created to publicize her computer-tampering case. Prosecutors charged her in 2010 with six counts of eavesdropping and she spent more than 20 months in jail, unable to make bail.
The jury deadlocked at her 2011 trial and, later that year, her attorneys filed a motion arguing that the Illinois Eavesdropping Act was unconstitutional. In 2012, Judge Steven J. Goebel agreed, dismissing the charges. Prosecutors filed an appeal.
During arguments before the state Supreme Court, Melongo’s attorney said the law improperly gave sweeping powers to government officials to suppress First Amendment rights.
“It gives government officials and public actors unilateral and unfettered right to deny the press or citizens the right to record, gather information and disseminate information about the government,“ Melongo’s attorney Gabriel Plotkin said.
By requiring consent to record even public actions, the law would allow a police officer to tell citizens “you can’t watch what we’re doing, pay no attention to what your government is doing.”
The State and defendant agree that the purpose of the eavesdropping statute is to
protect conversational privacy. However, the statute as now written deems all
conversations to be private and, thus, not subject to recording absent consent, even if
the participants have no expectation of privacy. The State argues that the choice
between a law that might be over-inclusive and one that might be under-inclusive is a
policy matter for the legislature, not the courts.
When that policy criminalizes a wide range of innocent conduct, however, it cannot
be sustained. The statute criminalizes the recording of conversations that cannot be
deemed private: a loud argument on the street, a political debate on a college quad,
yelling fans at an athletic event, or any conversation loud enough that the speakers
should expect to be heard by others. None of these examples implicate privacy
interests, yet the statute makes it a felony to audio record each one. Judged in terms of
the legislative purpose of protecting conversational privacy, the statute’s scope is
simply too broad. Clark, 2014 IL 115776,
Further, even when the recorded conversation is held in private, the statute does not
distinguish between open and surreptitious recording. The statute prohibits any
recording of a conversation absent the consent of all parties. Thus, rather than knowing
that he or she can proceed legally by openly recording a conversation so that all parties
are aware of the presence of an operating recording device, the individual must risk
being charged with a violation of the statute and hope that the trier of fact will find
implied consent. See People v. Ceja, 204 Ill. 2d 332, 349-50 (2003) (holding that
consent under the eavesdropping statute may be express or implied; implied consent is
consent in fact, inferred from the surrounding circumstances that indicate the
individual knowingly agreed to the recording). Clark, 2014 IL 115776, 22.
We conclude as we did in Clark, 2014 IL 115776, that the recording provision of
the eavesdropping statute (720 ILCS 5/14-2(a)(1) (West 2008)), burdens substantially
more speech than is necessary to serve a legitimate state interest in protecting
conversational privacy. Thus, it does not survive intermediate scrutiny. We hold that
the recording provision is unconstitutional on its face because a substantial number of
its applications violate the first amendment. See United States v. Stevens, 559 U.S. 460,
473 (2010) (a statute may be invalidated as overbroad if a substantial number of its
applications are unconstitutional when judged in relation to the statute’s legitimate sweep).
Mickey Osterreicher, general counsel for the National Press Photographers Association, one of several organizations who filed motions in support of the ACLU’s lawsuit, which led to the preliminary injunction in 2012, stated the following when informed of the news:
“It’s nice to see that common sense if finally prevailing in the state courts with regard to the eavesdropping law as well as in the federal court that pretty much decided this issue two years ago as it applied to police.”
Now we’ll wait and see what other charge they will conjure to prevent citizens from holding them accountable.