Friday, March 21, 2014
Yesterday, a unanimous Supreme Court of Illinois declared the state's eavesdropping law to be unconstitutional. The case is Illinois v. Melongo, No. 114852 (Ill., March 20, 2014).
The statute reads:
(a) A person commits eavesdropping when he:
(1) Knowingly and intentionally uses an eavesdropping device for the purpose of hearing or recording all or any part of any conversation or intercepts, retains, or transcribes electronic communication unless he does so (A) with the consent of all of the parties to such conversation or electronic communication or (B) in accordance with Article 108A or Article 108B of the "Code of Criminal Procedure of 1963", approved August 14, 1963, as amended; or
(3) Uses or divulges, except as authorized by this Article or by Article 108A or 108B of the "Code of Criminal Procedure of 1963", approved August 14, 1963, as amended, any information which he knows or reasonably should know was obtained through the use of an eavesdropping device.
The defendant argued that the statute violated the first amendment both as to the recording provision in (1) and the publishing provision in (3), both facially and as applied. The court observed that the law's stated purpose was to protect conversational privacy. The law, however, "deems all conversations to be private and, thus, not subject to recording absent consent, even if the participants have no expectation of privacy." The court held that the statute, "burdens substantially more speech than is necessary to serve a legitimate state interest in protecting conversational privacy." Therefore, the recording provision violates the first amendment on its face. The court reached the same conclusion regarding 14-2(a)(1) in a different case presenting different facts the same day in Illinois v. Clark, No. 115766 (Ill. Mar. 20, 2014).
The State conceded that if the recording provision fails first amendment muster, the publishing provision must too fail, due to a U. S. Supreme Court decision on point. Bartnicki v. Vopper, 532 U.S. 514 (2001). In that case, "[t]he Court held that under the first amendment, the state may not bar the disclosure of information regarding a matter of public importance when the information was illegally intercepted by another party who provided it to the disclosing party. The Illinois court determined that because Melongo was in the innocent party's position due to 14-2(a)(1) being declared unconstitutional, a bar against publishing the recording subjected her to a, "naked prohibition against disclosure."
In a Chicago Tribune report on the case, Steve Schmadeke notes (link added):
The decision comes two years after a federal appeals court in Chicago found unconstitutional the law's ban on recording police officers in public. The 7th Circuit Court of Appeals ruling prohibited enforcement of that part of the law shortly before Chicago hosted the NATO summit in May 2012.