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 at 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.]