Posted March 20, 2014 2:43 PM

High court ends eavesdropping law

Rita B. Garman
By Dave Gong
Law Bulletin correspondent

The Illinois Supreme Court struck down the state’s eavesdropping statute today, ruling unanimously on two challenges to the law on First Amendment and due process grounds.

The portion of the law in question led to one woman’s incarceration and made it illegal for a person to record a conversation without the explicit consent of all parties involved.

The law “criminalizes a whole range of conduct involving the audio recording of conversations that cannot be deemed in any way private,” Chief Justice Rita B. Garman wrote, such as loud arguments on the street, a political debate in a public place or loud conversations that could easily be overheard.

In one case, defendant DeForest Clark was charged with multiple felonies after taking audio recordings of a Kane County courtroom during his child-support hearing and in a conversation with the opposing attorney in a hallway outside the courtroom.

Clark argued that the statute violated his right to substantive due process, stating that “the elements of the offense do not require criminal intent” and created the opportunity for the criminalization of innocent conduct.

Additionally, Clark argued that the statute violated the First Amendment, claiming he had the right to record court proceedings in the absence of a court reporter or other recording device.

The state countered that the purpose of the statute is “to assure Illinois citizens that their conversations would not be recorded by another person without their consent” and as such did not violate Clark’s right to substantive due process.

Challenging Clark’s freedom of speech claim, the state argued that under the First Amendment, there is no right to secretly record court proceedings.

Although the court agreed that the purpose of the law is to protect conversational privacy, it found that the statute goes too far.

There are a few exceptions to the statute, the court said, but those are “limited circumstances that mostly apply to law enforcement authorities.”

Donald J. Ramsell, owner of Ramsell & Associates LLC in Wheaton who represented Clark, said the decision will benefit more people than just his client.

“My client is very happy with the results, and I’m happy for the public at large because I think it will protect them from a lot of government misconduct that was unable to be legally exposed in the past,” Ramsell said.

“It’s difficult for the government to uphold any statute that affects the First Amendment, and this is just a perfect example of that.”

Eric M. Levin, an assistant attorney general, argued the case for the state. Attorney General Lisa M. Madigan’s office did not provide immediate comment on the case, which is People v. DeForest Clark, No. 115776.

Kane County State’s Attorney Joseph H. McMahon, who prosecuted the case at the trial level, said he believes the ruling gives the General Assembly a chance to address “a very antiquated statute.”

The decisions, he said, give the legislature the chance to rewrite the statute to take technology advances into account.

“I’m glad the General Assembly will have the chance to write that and hopefully pass the statute that takes those factors into consideration,” he said.

State trial and federal appeals courts had previously declared the law unconstitutional, but the rulings either never reached the state high court for review or applied only in limited circumstances. Those cases involved citizens’ attempts to record police officers in public.

Efforts by state lawmakers to revise the statute in 2012 fell short due to concerns from police groups.

In the second case, the court used its holding in Clark to determine that Annabel Melongo, a woman who spent 20 months incarcerated after she recorded a court clerk and posted the audio on her website, also could not be charged under the eavesdropping statute.

Garman again wrote that the law goes too far, citing examples such as recording a political debate on a college campus or screaming fans at a sporting event as examples of innocent activity that could then be deemed criminal.

“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,” Garman wrote.

The court also said a provision that criminalized Melongo’s dissemination of the audio is too broad. That section makes it illegal for anyone to divulge information “which he knows … was obtained through the use of an eavesdropping device.”

Garman pointed out in the opinion that the plain language of that section criminalized any recording made on a cellphone or other recording device, regardless of consent.

“This alone would seem to be sufficient to invalidate the provision,” she wrote.

But she added that after striking down the recording provision of the statute, the audio Melongo posted “cannot be characterized as illegally obtained.”

Daniel M. Feeney and Gabriel Bankier Plotkin, partners at Miller, Shakman & Beem LLP, represented Melongo.

In a statement, Plotkin said the statute did not protect the citizens the way it was meant to.

“Instead of serving as a shield to protect individual privacy, the statute was written so broadly that it allowed the state to use it as a sword to prosecute citizens for monitoring and reporting on the conduct of public officials,” he said.

Alan J. Spellberg, a Cook County assistant state’s attorney, handled the state’s case and referred a request for comment to the state’s attorney’s press office, which did not respond by press time.

The case is People v. Melongo, No. 114852.

Since the cases involved trial judges declaring a law unconstitutional, the appeals went directly to the Supreme Court.

The rulings affirmed decisions by Kane County Circuit Judge David R. Akemann and Cook County Circuit Judge Steven J. Goebel, respectively.


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