In a pair of opinions recently released by the Illinois Supreme Court, People v. Clark, 2014 IL 115776 (March 20, 2014) and People v. Melongo, 2014 IL 114852 (March 20, 2014), the “recording” and “publishing” provisions of Illinois’ eavesdropping law were declared unconstitutional on First Amendment grounds. Prior to the rulings, it was a crime for any person to record any conversation or electronic communication unless done so with the permission and consent of all parties to the communication. See 720 ILCS 5/14-2.
In Clark, the Kane County defendant was charged with violating the recording provision of the eavesdropping statute when he recorded judicial proceedings without the consent of the judge and opposing counsel. The defendant argued that the eavesdropping statute violated the First Amendment under the overbreadth doctrine. The overbreadth doctrine prevents overbroad laws which deter or chill constitutionally protected speech. A statute may be invalidated on overbreadth grounds only if the overbreadth is substantial. The eavesdropping statute defined “[c]onversation” as “any oral communication between 2 or more persons regardless of whether one or more of the parties intended their communication to be of a private nature under circumstances justifying that expectation.” See 720 ILCS 5/14-1(d).
The court held that while audio recordings of truly private conversations are within the legitimate scope of the eavesdropping statute and thus properly prohibited under the statute, the statute’s blanket ban on audio recordings sweeps so broadly that it criminalizes a great deal of wholly innocent conduct, which exceeds the statute’s purpose and its legitimate scope. The court explained that the statute criminalized recording conversations that did not implicate privacy interests, such as: “(1) a loud argument on the street; (2) a political debate in a park; (3) the public interactions of police officers with citizens . . ., and (4) any other conversation loud enough to be overheard by others.” Accordingly, the recording provision of the statute burdened substantially more speech than was necessary to serve a legitimate state interest in protecting conversational privacy and was thus unconstitutional.
In Melongo, the Cook County defendant was accused of recording three phone conversations with a court employee and then posting those recordings to her website. The defendant was not only charged with violating the recording provision of the statute, but also violating the “publishing provision” of the statute which prohibited using or divulging information obtained through the use of an eavesdropping device. See 720 ILCS 5/14-2(a)(3). Relying on the analysis in Clark, the Illinois Supreme Court held that because it had determined that the recording provision was unconstitutional, criminalizing the publication of those conversations was likewise unconstitutional because it would amount to a “naked prohibition against disclosure” irrespective of any legitimate interest the publisher or public may have.
The Illinois legislature will likely respond to the decisions by drafting an updated statute that addresses the overbreadth concerns raised in Clark and Melongo. Until then, however, the recording and publishing provisions of the Illinois statute remain unenforceable.
For more information on the Illinois eavesdropping statute and/or the Clark and Melongo decisions, contact Katherine Olson of Messer Strickler, Ltd. at (312) 334-3444 or at firstname.lastname@example.org.