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Illinois criminal eavesdropping law is unconstitutional

Posted by Steven H. Fagan | Mar 26, 2014 | 0 Comments

The Illinois Supreme Court, in two related opinions, has declared Illinois' criminal eavesdropping law, the 1961 Eavesdropping Act, to be unconstitutional.

Under Illinois law prior to the March 20 ruling, the recording of a person's words without their consent was a felony violation of the law in the state of Illinois. The purpose of the law was to protect private conversations. That may seem to be reasonable goal, however in practice the law was used to prevent people from recording and publishing their interactions with government officials.

In the unanimous decisions, the Court found the act violates free speech and due process protections. The opinions focus on the making of audio recordings that the justices concluded had been criminalized if the recordings of conversations that took place in public. The opinions provided examples of a political debate on a college quad, fans yelling at a game or anywhere where someone is speaking loudly in public. The conclusion of the court was that “the statute's scope is simply too broad.” Also, the law "criminalizes a wide range of innocent conduct."

"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 justices ruled.

State of Illinois v. Annabel Melongo

One of the cases involved Annabel Melongo, who recorded three telephone conversations she had with a court reporter supervisor at the George Leighton Criminal Courts complex, Cook County's main criminal court. Ms. Melongo had called to correct an apparent error in a court transcript. She posted audio of those conversations on a website she had created to provide information regarding her court case on charges of computer-tampering. Ms. Melongo was charged in 2010 with six counts of eavesdropping. Because she was unable to post the required bail, Ms. Melongo spent more than 20 months in jail.

In the wake of her 2011 trial, at which the jury deadlocked, the attorneys for Ms. Melongo filed a motion with the Court arguing that the Illinois Eavesdropping law was unconstitutional. In a 2012 ruling dismissing the charges, Judge Steven J. Goebel agreed with the arguments presented by the attorneys for Ms. Melongo. Prosecutors appealed.

During arguments before the Illinois Supreme Court, Ms. Melongo's attorneys successfully argued that the law gave sweeping powers to government officials improperly giving them the power to suppress First Amendment rights. The attorney arguing on behalf of the state countered that the Illinois General Assembly had crafted the 1961 law so that it protected “conversational privacy” while upholding other constitutional rights. The Illinois Supreme Court sided with Ms. Melongo upholding the decision of the trial Court.

State of Illinois v. DeForest Clark

The second case decided by the Supreme Court involved DeForest Clark, who was indicted by a grand jury in Kane County on two counts of eavesdropping. The first count alleged that the defendant used an eavesdropping device to record a conversation between himself and attorney Colleen Thomas without her consent. The second count alleged that Mr. Clark had used an eavesdropping device in order to record a conversation between himself, Judge Robert Janes and Ms. Thomas while the Judge was acting in the performance of his official duties. Mr. Clark had failed to obtain the consent of Judge Janes or Ms. Thomas.

Attorneys for Mr. Clark filed a motion to dismiss the indictment citing grounds that Illinois' eavesdropping law violates the First Amendment to the U.S. Constitution. The circuit court of Kane County granted the motion, holding that the eavesdropping statute is unconstitutional on substantive due process and First Amendment grounds.

Mr. Clark was in court on a child support matter and Ms. Thomas was representing the opposing party. According to defendant, there was no court reporter present nor was there any device with which to record the proceedings. He alleged that the recordings he made were to preserve the record of his case that he had a first amendment right to gather information through the recording of public officials in the act of performing their public duties.

In it's opinion, the Illinois Supreme Court said that "If another person overhears what we say, we cannot control to whom that person may repeat what we said. That person may write down what we say and publish it, and this is not a violation of the eavesdropping statute. Yet, if that same person records our words with an audio recording device, even if it is not published in any way, a criminal act has been committed. The person taking notes may misquote us or misrepresent what we said, but an audio recording is the best evidence of our words. Yet, the eavesdropping statute bars it."

The Court's opinion also noted it is understandable that "many people do not want their voices broadcast to others or on the Internet to be heard around the world. But, to a certain extent this is beyond our control, given the ubiquity of devices like smartphones, with their video and audio recording capabilities and the ability to post such recordings instantly to the Internet. Illinois' privacy statute goes too far in its effort to protect individuals' interest in the privacy of their communications."

The attorneys at Fagan, Fagan & Davis have defended countless clients against misdemeanor and felony criminal charges throughout the Chicago area courts, including those located in Cook County, DuPage County and Lake County. If you face criminal prosecution, contact us now for a free consultation.

About the Author

Steven H. Fagan

Steve Fagan earned his law degree from Chicago-Kent College of Law, is a member of the NCDD, NACDL, ISBA and a founding member of the DUIDLA. He is published and has taught CLE for lawyers on subjects such as sex offenses, DUI and criminal defense, focuses on trial work and Real Estate closings


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