Sunday, October 16, 2011

Strict eavesdropping law ruled unconstitutional in Illinois case

Chicago colleague Bob Roberts of WBBM-AM 780 and the Illinois News Broadcasters Association shares this good news from the Reporters Committee for Freedom of the Press:

An Illinois judge ruled the state’s eavesdropping law unconstitutional
as applied to a man who faced up to to 75 years in prison for secretly
recording his encounters with police officers and a judge.

“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,” the judge
wrote in his decision dismissing the five counts of eavesdropping
charges against defendant Michael Allison.

“Such action impedes the free flow of information concerning public
officials and violates the First Amendment right to gather such
information,” he wrote.

The ruling is the most recent development raising questions about
Illinois’ strict eavesdropping statute, which makes it a felony to use
a device to audio record or overhear a conversation without the consent
of all parties involved, regardless of the circumstances of the

Allison’s legal troubles began when he recorded his conversations with
local police officers who he claimed were harassing him. The officers
were seizing old cars he was fixing on his front lawn in violation of a
city ordinance, which then forced him to pay a fee to have them

When Allison was brought into court for violating the ordinance, he
requested a court reporter so that he could have a record of his trial.
The court declined his request and Allison announced that he would
record the trial himself.

When he showed up to the courtroom for his trial, the judge immediately
asked Allison if he had a recording device and if it was on. He
answered yes and the judge had him arrested on the spot for violating
her privacy.

When police confiscated Allison's digital device, they found the other
recordings. Allison was then charged with five felony counts of
eavesdropping, each of which can carry a maximum 15-year prison

In Thursday’s ruling, Circuit Court Judge David Frankland said that
Allison had a First Amendment right to record the police officers and
court employees.

The judge also ruled that while it was reasonable to prohibit the
defendant from recording in the courtroom, making what Allison did a
felony offense was overreaching and irrational.

“The statute [as it is currently written] includes conduct that is
unrelated to the statute’s purpose and is not rationally related to the
evil the legislation sought to prohibit,” the judge wrote in his
opinion. “For example, a defendant recording his case in a courtroom
has nothing to do with an intrusion into a citizen’s privacy but with

Although some civil rights activists call the decision a small victory,
the Illinois eavesdropping law is still in effect.

Earlier this week, a panel of the U.S. Court of Appeals in Chicago (7th
Cir.) heard another case challenging the Illinois eavesdropping law in
which the American Civil Liberties Union argued that the statute should
be changed to allow for the recording of public officials in public

One of the judges on the panel hearing the case, however, was quoted by
the Chicago Sun-Times questioning the ACLU's arguments.

“If you permit the audio recordings, they’ll (sic) be a lot more
eavesdropping. … There’s going to be a lot of this snooping around by
reporters and bloggers,” Circuit Judge Richard Posner said. “Yes, it’s
a bad thing. There is such a thing as privacy.”

The appeals court is expected to issue a formal ruling on the case in
the upcoming months, according to the Sun-Times.

In another case last month, a jury acquitted a Chicago woman who used
her cell phone to secretly record a conversation with police
investigators about a sexual harassment complaint she was filing
against the department. The recording was especially controversial
because the investigators allegedly discouraged her from filing the
report, saying on the recording “I think it’s something we can handle
without having to go through this process…”

The right to film police in the performance of their public duties has
also been the subject of debate across the U.S. as arrests for such
activities have been on the rise.

In August, the U.S. Court of Appeals in Boston (1st Cir.) ruled that
this kind of filming is a “basic and well-established liberty
safeguarded by the First Amendment,” in a case involving a complaint
filed by a Boston man who filmed the scene of an October 2007 arrest on
his cell phone, only to be arrested himself and charged with a
violation of Massachusetts wiretapping laws. The most recent ruling in
Illinois cited this decision as a “persuasive authority” for ruling on
similar cases.