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Illinois Supreme Court strikes down state “eavesdropping” law

Thursday, Mar 20, 2014

* Tribune

The Illinois Supreme Court this morning struck down the state’s eavesdropping law, one of the strictest in the nation that made audio recording of any person, even in public, illegal unless that person gave their consent.

The high court’s ruling comes two years after a federal appeals court in Chicago found unconstitutional the law’s ban on recording police officers in public. The court prohibited enforcement of that part of the law shortly before Chicago hosted the NATO summit.

During arguments before the state Supreme Court in January, Justice Robert Thomas referred to the “overbreadth of the statute” and said it seemed to make it a crime to record a “shouting match at a baseball game” and post it on YouTube.

* Via the American Civil LIberties Union of Illinois, here’s a press release sent out by Ms. Melongo’s lawyers….

In a ruling that protects citizen’s ability to gather and disseminate information about governmental activity, the Illinois Supreme Court held today that the state’s Eavesdropping Statute is unconstitutional. In two unanimous decisions, People v. Melongo and People v. Clark, the Supreme Court held that the controversial statute violated the free speech and due process protections of the U.S. and Illinois Constitutions.

The Illinois Eavesdropping Statute was enacted to protect private conversations from being recorded without consent. But the Supreme Court held that the statute, as written, was far too broad, making criminals out of people who recorded conversations that were undeniably public, or that nobody intended to be private. For example, the statute made it a felony for someone to record on his iPhone a shouting match between two passionate fans in the stands at a baseball game, or to record police officers interacting with protesters in a public plaza in front of City Hall and posting the exchange on YouTube.

The Supreme Court also held that the statute infringed on the free speech rights of citizens by making it a crime to audio record conversations with public officials, who have no privacy interest in the statements they make while interacting with the public, including recording police officers making public arrests. In fact, as it turns out, the only prosecutions ever brought under the statute charged citizens with felonies for recording and reporting on conversations with police officers or public officials performing their official duties, in violation of their First Amendment rights.

The case against Annabel Melongo was one such example. Ms. Melongo was charged in Cook County in 2009 with six counts of felony eavesdropping. Her crime was recording telephone conversations she had with a representative of the Circuit Court of Cook County, who was explaining to her the official procedure for correcting an inaccurate court transcript, and then posting those conversations on a blog aimed at exposing public corruption. Ms. Melongo served almost two years in jail before a Circuit Court judge concluded that it was unconstitutional to charge her with eavesdropping.

The State’s Attorney appealed the trial court’s decision directly to the Illinois Supreme Court, arguing that the broad statute was properly applied to her conduct. The Supreme Court disagreed, writing that the Eavesdropping Statute “burdens substantially more speech than is necessary to serve a legitimate interest in protecting conversational privacy” and is thus “unconstitutional on its face.”

The Court went on: “The statute criminalizes 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 record each one. Judged in terms of the legislative purpose of protecting conversational privacy, the statute’s scope is simply too broad.” [Emphasis added.]

I’ve said it before and I’ll say it again, overall, we have a very good Supreme Court in this state. The statute in question is ridiculously unconstitutional. And the fact that Ms. Melongo served almost two years behind bars because of an over-zealous Cook County State’s Attorney is totally unconscionable. And State’s Attorney Anita Alvarez’s appeal defied all standards of decency and common sense.

The decisions are here and here.

- Posted by Rich Miller        


43 Comments
  1. - Walker - Thursday, Mar 20, 14 @ 10:14 am:

    About time.


  2. - Yellow Dog Democrat - Thursday, Mar 20, 14 @ 10:15 am:

    Overall, we have an extraordinarily good Supreme Court.


  3. - State employee - Thursday, Mar 20, 14 @ 10:17 am:

    Kudos to the state supreme court for this.


  4. - Aldyth - Thursday, Mar 20, 14 @ 10:20 am:

    Overturning this law was overdue. It’s certainly been abused by law enforcement.


  5. - Chris - Thursday, Mar 20, 14 @ 10:23 am:

    Question:

    How long before someone introduces a new law that is ‘trying’ to comply with the ruling, but still is overprotective of the Police and subject to use in abusive prosecutions?


  6. - Leave a Light on George - Thursday, Mar 20, 14 @ 10:25 am:

    I think this is a great decision, but not for the reasons mentioned so far.

    The decision will also allow state and local police to record conversations with one party consent. A few more crooks are going to be convicted with their own words. Perhaps it might even mean the state can take a few of these public corruption investigations up instead of relying on the fed’s all the time.


  7. - wordslinger - Thursday, Mar 20, 14 @ 10:26 am:

    It was a ridiculous police-state law and a despicably over-zealous prosecution by Alvarez.

    Noticed on my GOP ballot that no Republican even bothered to file for Cook County State’s Attorney.

    I guess there aren’t any Republican lawyers in Cook County who have strong feelings about the Constitution.


  8. - Wensicia - Thursday, Mar 20, 14 @ 10:26 am:

    I would never accuse Alvarez of having decency and common sense.
    Another slap back for her office.


  9. - Mason born - Thursday, Mar 20, 14 @ 10:27 am:

    Well done Supremes.

    “the only prosecutions ever brought under the statute charged citizens with felonies for recording and reporting on conversations with police officers or public officials performing their official duties,”

    It’s a shame it took this long to get it to the court to correct.


  10. - vise77 - Thursday, Mar 20, 14 @ 10:30 am:

    Good news.


  11. - Jim'e' - Thursday, Mar 20, 14 @ 10:31 am:

    I hope this sends a message to Anita to chill, and to stick to only putting the violent behind bars.


  12. - Demoralized - Thursday, Mar 20, 14 @ 10:31 am:

    Why anybody thinks they have a right to privacy in public is beyond me.


  13. - RNUG - Thursday, Mar 20, 14 @ 10:32 am:

    Good. I agree with everyone it’s past due.


  14. - John Boch - Thursday, Mar 20, 14 @ 10:40 am:

    A very good state supreme court indeed.

    This law has always been, in large part, about protecting corrupt politicians in this state.

    John


  15. - Paul - Thursday, Mar 20, 14 @ 10:43 am:

    Can’t wait to see everyone’s reaction when someone gets arrested and convicted because the po po were recording them in public. Be careful what you wish for people. And as far as i know, phone calls aren’t “being in public”


  16. - Anonymous - Thursday, Mar 20, 14 @ 10:44 am:

    Word-
    The SA is not up for election this year.


  17. - Demoralized - Thursday, Mar 20, 14 @ 10:48 am:

    ==phone calls aren’t “being in public”==

    If you are talking on it in public it is.


  18. - Capo - Thursday, Mar 20, 14 @ 10:51 am:

    Absolutely long overdue. It is clear this now former law was primarily used to protect public officials entrusted by the public to govern and enforce the laws. Sometimes these public officials abuse their power and laws like this often protected their abusive/illegal conduct and the focus turned on the formerly illegal conduct of the complainant. Ridiculous governmental abuse. All to frequently it is circle the wagons to protect the accused one in power and turn the focus to the complainant.


  19. - wordslinger - Thursday, Mar 20, 14 @ 10:52 am:

    –Can’t wait to see everyone’s reaction when someone gets arrested and convicted because the po po were recording them in public.–

    You can’t be serious. Have you ever seen “Cops?”


  20. - wordslinger - Thursday, Mar 20, 14 @ 10:54 am:

    Anon 10:44, thanks, my bad. I morphed it into the other county offices that are up.


  21. - Backwards - Thursday, Mar 20, 14 @ 10:59 am:

    There’s much more to the Melongo story.

    Her “eavesdropping” consisted of Whistleblowing at the troubled Save-a-Life Foundation, the “charity” sponsored by Dick Durbin and Jan Schakowsky.


  22. - dupage dan - Thursday, Mar 20, 14 @ 11:01 am:

    Hard to imagine this law was anything other than keeping bad actions by a few bad cops from being proven thru the use of incontrovertible evidence. We have seen where this kind of action has also vindicated some cops’ actions. What is the down side? I note Alvarez wasn’t the SA arguing this in front of the Supremes. If it was so important why not? Is it possible she isn’t licensed to practice in front of the ISCOTUS? (snark).


  23. - Anonymous - Thursday, Mar 20, 14 @ 11:08 am:

    Every State’s Attorney is obliged to appeal a statute when it is found unconstitutional, for no one else can do it. Also, the State’s Attorneys have been trying to fix this statute for years. It’s wholly unfair and specious to lay this on the lap of prosecutors. Where’s the vitriol for the assembly that passed this….. In fact Dillard was quoted in the opinion.


  24. - Backwards - Thursday, Mar 20, 14 @ 11:08 am:

    Dan,
    There is more to it. For some reason Anita Alvarez did not want Melongo to continue talking to Chuck Goudie, so she was arrested for revealing some financial information at the SALF to ABC-7.

    Could be because it was technically illegal, but why this case? Needs Chuck Gouldie back on it.


  25. - RonOglesby - Thursday, Mar 20, 14 @ 11:31 am:

    Wordslinger “It was a ridiculous police-state law and a despicably over-zealous prosecution by Alvarez. ”

    YES.

    This law (loved by the political class and agents thereof) was used to beat citizens over the head. Police that said or did something wrong, agency employees failing to do the job, or even talking to a politician or his staff.

    What is sad is that it was held onto and defended… and while we all seem to be applauding this ruling, maybe we should think to ourselves “WHO defended and maintained this law and why are they still in their job”


  26. - Glenn - Thursday, Mar 20, 14 @ 11:33 am:

    Were there ever prosecutions for use of fixed security cameras under this overturned law?

    Why then was the use of mobile cameras deemed illegal?

    Alvarez should lose her job over the Melongo prosecution.


  27. - RonOglesby - Thursday, Mar 20, 14 @ 11:36 am:

    @Glenn
    “Alvarez should lose her job over the Melongo prosecution. ”

    SHOULD. But wont.


  28. - Anon - Thursday, Mar 20, 14 @ 11:36 am:

    Shame on the legislators who voted against repealing this disgusting, unconstitutional law. I’m sure they all claim to value freedom, but their vote to continue sending people to prison for a behavior that causes no harm is unconscionable. The CCSAO is also guilty of gross injustice.


  29. - pingu - Thursday, Mar 20, 14 @ 11:47 am:

    It might be wise to remember that any in-state telephone calls can now be recorded by the other party without your consent or knowledge (absent some other surviving prohibition).


  30. - In the Middle - Thursday, Mar 20, 14 @ 11:47 am:

    The asst. state’s attorney, Spellberg…

    “he told the justices the issue before them was one of legislative policy outside their authority, not a constitutional one”

    Yeah, I’m sure the justices really loved hearing that. Great move. Genius.

    Glad they sided with Melongo on this. Just shameful what happened to her.


  31. - RonOglesby - Thursday, Mar 20, 14 @ 11:52 am:

    @pingu,

    as if that wasn’t possible before? The only time this law was enforced was when people recorded state agents of some type and the state agent said or did something that was stupid, embarrassing or illegal.

    Assuming this law is what stopped people form recording you was silly.


  32. - Glenn - Thursday, Mar 20, 14 @ 11:57 am:

    “Everyone, regardless of the mode of expression, has a constitutionally protected right to free speech. But when it comes to freedom of the press, I believe we must define a journalist and the constitutional and statutory protections those journalists should receive.”–Senator Durbin

    http://www.suntimes.com/news/otherviews/20978789-452/sen-dick-durbin-its-time-to-say-whos-a-real-reporter.html

    Don’t worry. Senator Durbin is thinking about making it a crime to report without a being licensed by the State.


  33. - Leave a Light on George - Thursday, Mar 20, 14 @ 12:07 pm:

    @ Glenn

    This is about recording sound not picture.


  34. - Glenn - Thursday, Mar 20, 14 @ 12:14 pm:

    @Leave a Light on George

    Wrong.

    “For example, the statute made it a felony for someone to record on his iPhone a shouting match between two passionate fans in the stands at a baseball game, or to record police officers interacting with protesters in a public plaza in front of City Hall and posting the exchange on YouTube.”


  35. - Fed up - Thursday, Mar 20, 14 @ 12:32 pm:

    Glenn, it was legal to record video as long as you didn’t record audio. Many in law enforcement thought it was a silly law also. Audio could not be used from Video. Even if video existed where no expectation of privacy existed.


  36. - Anon - Thursday, Mar 20, 14 @ 12:34 pm:

    The Nekritz bill (SB 1808), to repeal this monstrosity passed the House on the second try in 2012, but the Senate sponsor, Mike Noland, refused to call it on May 30, killing it. Consequently, he is responsible for the fact that the law is still on the books. We could call it the Noland law. Now we can celebrate that the Noland law is no longer valid.


  37. - pingu - Thursday, Mar 20, 14 @ 1:23 pm:

    @RonO - True, but it wasn’t admissible in court before.


  38. - DuPage - Thursday, Mar 20, 14 @ 1:59 pm:

    I hope the ILSC also upholds the constitution and throws out SB1.


  39. - Leave a Light on George - Thursday, Mar 20, 14 @ 2:40 pm:

    @ Glenn

    Bite me.

    I worked in Law Enforcement for nearly 28 years. I headed up a small undercover /detective detail for 7yrs. I know the history of eavesdropping law in this state.


  40. - robert lincoln - Thursday, Mar 20, 14 @ 4:54 pm:

    Lots of ignorance here today. The legislature has repeatedly refused to change a bad law. Numerous law enforcement including cook county has tried to change law. Legislature refuses to change law because they don’t wish to be the subject being recorded. CCSAO is obligated to argue the constitutionality of the law on appeal. Simply change our law to single party consent state. Like everyone else. LEGISLATURE refuses.


  41. - Backwards - Thursday, Mar 20, 14 @ 5:01 pm:

    RL,

    Sounds good, but way to technical to describe what happened here. Durbin and Schakowsky, and several other Illinois politicians sponsored this “charity”. Melongo blew the whistle, and Alvarez had her arrested and imprisoned.

    It’s the standard issue political bullying and disappearing Federal Grants that make this a case. No one would have looked at it if it was someone tape recording a DUI arrest or something.


  42. - Pacman - Thursday, Mar 20, 14 @ 6:46 pm:

    About time! One party consent for all. Illinois was the only state or one of a few left in the country that had such restrictive overhear laws. No more hoop jumping to conduct one party consent overhears. This is kinda like concealed carry, that being Illinois last in nation to give the citizens their rights back!


  43. - liandro - Thursday, Mar 20, 14 @ 9:40 pm:

    Awesome.


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