Today the
Illinois Supreme Court unanimously overturned that
state’s draconian eavesdropping law, which makes it a felony to
record public officials without their permission, even when they
are performing their public duties. Two years ago the U.S. Court of
Appeals for the 7th Circuit
ruled that the law was unconstitutional as applied to police
officers recorded in public. Today’s
decision extends that analysis to other public officials
as well as private citizens when they do not have a reasonable
expectation of privacy.
The justices note that the eavesdropping ban “criminalizes a
wide range of innocent conduct,” including “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.”
The court adds that “even when the recorded conversation is held
in private, the statute does not distinguish between open and
surreptitious recording,” insteading prohibiting
“any recording of a conversation absent the consent of all
parties.” That means someone who openly records a conversation
“must risk being charged with a violation of the statute and
hope that the trier of fact will find implied consent.”
Because the eavesdropping ban “burdens substantially more speech
than is necessary to serve a legitimate state interest in
protecting conversational privacy,” the court concludes, “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.”
The case involved Annabel Melongo, who was arrested for
recording three telephone conversations with an assistant
administrator of the Cook County Court Reporter’s Office. Melongo
was trying to correct an erroneous transcript from a computer
tampering case in which she was involved, and she wanted to
document her interactions with the court reporter’s supervisor. She
was charged with six counts of eavesdropping in 2010 and spent 20
months in jail because she could not make bail. Her 2011 trial
ended with a hung jury.
[Thanks to Pete Heimlich and Ryan Compaan for the tip.]
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