Monday, March 24, 2014
Can a government criminalize the recording of conversations absent consent without violating the First Amendment, or perhaps the Due Process Clause?
Both cases relied upon ACLU v. Alvarez, in which the Seventh Circuit enjoined the statute from being applied to a Chicago police accountability program.
In Clark, the Illinois Supreme Court held that 720 ILCS 5/14-2(a)(1)(A), the eavesdropping statute, violated the First Amendment's overbreadth doctrine "because a substantial number of its applications are unconstitutional, judged in relation to the statute’s plainly legitimate sweep." The court recognized the ubiquity of smartphones and other recording devices.
Importantly for the court, the statute criminalized a "whole range of conduct involving the audio recording of conversations that cannot be deemed in any way private." It gave these examples:
- a loud argument on the street;
- a political debate in a park;
- the public interactions of police officers with citizens (if done by a member of the general public); and
- any other conversation loud enough to be overheard by others whether in a private or public setting.
Although the opinion in Clark is a brief 9 pages, it's substantial and well-reasoned.
Equally brief and well-reasoned, although somewhat more complex, is the companion opinion in Melongo. The state argued that Melongo's First Amendment claim was not cognizable on appeal, unlike the Due Process claim, and that the constitutional claims were inconsistent with her defense at trial. Nevertheless, the court found that the statutory provision was unconstitutional under the First Amendment for the same rationale as in Clark. Melongo also raised a constitutional claim to the "publishing provision" of the statute, which further criminalizes the "publishing" of any recording made without consent. The court similarly found this provision overbroad.
It will be interesting to see how the Illinois legislature responds.