This article first appeared in the St. Louis Beacon, Oct. 4, 2011 - Illinois' toughest in the nation eavesdropping law has taken it on the chin twice in recent days. A judge in Crawford County ruled it unconstitutional and a jury in Chicago acquitted a woman who recorded her conversation with a police officer.
Illinois law makes it a felony to record audio of conversations without the consent of all parties involved. Police in Chicago and around the state have been actively enforcing the law in cases where citizens tape the actions of police officers.
In Crawford County, Judge David K. Frankland ruled that Illinois' law violated both the due process and First Amendment rights of Michael Allison who had tried to tape his conversations with police and public officials after a dispute with police.
Allison said in an interview earlier this year that officers were seizing old cars he was fixing on his front lawn. The police said that violated an ordinance. When Allison went to court, he requested a court reporter, but was denied.
Allison then announced he would record court proceedings himself with his DS-30 digital device. He was charged with five counts of violating the state eavesdropping law for trying to record conversations with the city attorney, circuit clerk, police and the court. He faced up to 75 years in prison.
But Judge Frankland said the law had two constitutional flaws. The due process problem was that it did not have an adequate criminal intent element. Completely innocent actions by citizens seeking to record audio in public places could be prosecuted without any showing of criminal intent.
Judge Frankland noted that the law had been passed to protect people's privacy but was being enforced to ban recording of public actions of government officials. "A statute intended to prevent unwarranted intrusions into a citizen's privacy cannot be used as a shield for public officials who cannot assert a comparable right of privacy in their public duties," he wrote.
In addition, Judge Frankland held that the law violated Allison's First Amendment right to gather information about his case - the citizen version of a journalist's right to gather news.
The judge pointed out that the 1st U.S. Circuit Court of Appeals had thrown out a similar Massachusetts law on First Amendment grounds. In that case, the federal appeals court ruled that "though not unqualified, a citizen's right to film government officials, including law enforcement officers, in their discharge of their duties in a public space is a basic, vital, and well-established liberty safeguarded by the First Amendment." The case had involved a Boston man videotaping a police arrest on public property.
In the Chicago case, a jury acquitted Tiwanda Moore, an exotic dancer who went to police headquarters to complain about an officer she said had fondled her and left her his personal phone number. An officer receiving Moore's complaint tried to dissuade her from pursuing it. She began recording the conversation with her Blackberry. When officers discovered what she was doing, they charged her under the eavesdropping statute.
The jury acquitted Moore after hearing her four-minute recording in which the internal affairs officer told Moore she would certainly lose because it was her word against the policeman's. Moore's lawyers argued that the taping was legal under an exception to the Illinois law that permits secret taping of conversations if they involve possible criminal activity.
Meanwhile, an ACLU challenge to Illinois' eavesdropping law may be running into trouble in the 7th U.S. Circuit Court of Appeals. The Chicago Sun-Times reported that influential judge Richard Posner suggested during oral arguments that reporters and gangbangers would run wild if they could secretly tape conversations.
"If you permit the audio recordings, they'll be a lot more eavesdropping," he said. "... There's going to be a lot of this snooping around by reporters and bloggers. Yes, it's a bad thing. There is such a thing as privacy."
If the 7th Circuit decision ends up at odds with the 1st Circuit's, the issue could end up before the U.S. Supreme Court.
More Information
Chicago Sun-Times story on 7th Circuit argument: https://www.suntimes.com/news/7639298-418/judge-casts-doubt-on-aclu-challenge-to-law-forbidding-audio-recording-of-cops.html
Article by Reporters Committee for Freedom of the Press with link to Frankland decision: https://www.rcfp.org/newsitems/index.php?i=12153