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Free Speech Trumps Conversational Privacy

In a recent pair of decisions, the Supreme Court of Illinois resolved the tension between freedom of speech and privacy in favor of freedom of speech. In People v. Clark, 2014 IL 115776 the Court held that Illinois’ eavesdropping statute was so overbroad it violated the First Amendment of the United States Constitution, thus finding the statute unconstitutional. And, in People v. Melongo, 2014 IL 114852, the Court held that the eavesdropping statute’s prohibition on publishing any information obtained through an “eavesdropping device” was also unconstitutional.

“Eavesdropping” evokes the image of someone standing with their ear to the door, sneakily listening to conversations they were not meant to hear. And, according to the State of Illinois, that is what the eavesdropping statute sought to protect citizens against. But, as Clark and Melongo make clear, what was considered “eavesdropping,” subject to criminal penalties in Illinois, went far beyond forbidding this type of secretive behavior.

The defendants in Clark and Melongo recorded conversations without the consent of the other participants. In Clark the defendant recorded his conversation with an opposing party’s attorney and a conversation he had with the judge and opposing counsel during court proceedings. In Melongo, the defendant recorded conversations she had with a court reporter’s supervisor during her repeated attempts to correct an official transcript that erroneously showed she was present in court when she was not. The defendant in Melongo posted those recordings on her website.

The eavesdropping statute, 720 ILCS 720-5/14-2(a)(1)(A), states that eavesdropping occurs when a person:

Knowingly and intentionally uses an eavesdropping device for the purpose of hearing or recording all or part of any conversation or intercepts, retains, or transcribes electronic communication unless he does so (A) with the consent of all of the parties to such conversation or electronic communication or (B) in accordance with Article 109A or Article 108B of the ‘Code of Criminal Procedure of 1963’...

The statute protects all conversations, not just private conversations. A “conversation” is defined by the statute to mean “any oral communication between 2 or more persons regardless of whether one or more of the parties intended their communication to be of a private nature under circumstances justifying that expectation.” 720 ILCS 5/14-1(d). The statute could also be violated by anyone that published information obtained through the use of an “eavesdropping device.” 720 ILCS 5/14-2(a)(3).

The defendants in both cases raised a variety of constitutional arguments, including that the statute violated the First Amendment. The Illinois Supreme Court’s decision turned on this latter argument. In Clark, the Court held that the recording provision of the eavesdropping statute was unconstitutional, agreeing with the defendant that the statute’s broad scope violated the First Amendment. People v. Clark, 2014 IL 115776, ¶ 25.

The Court noted that the act of recording speech, through audio or audiovisual means, is part of the free speech and free press protections of the First Amendment. The court recognized that “audio and audiovisual recordings are medias of expression commonly used for the preservation and dissemination of information and ideas.”  Id. at ¶ 18.

Because the statute was content neutral, it could only stand if it advanced “important governmental interests unrelated to the suppression of free speech and does not substantially burden more speech than necessary to further those interests.”  Id. at ¶ 19.

It was undisputed that the eavesdropping statute was enacted to protect conversational privacy. Indeed, the Court agreed that when people are having a private conversation they have a legitimate expectation that their “conversations will be not recorded by those not privy to the conversation.”  Id. at ¶ 21. But, the Court noted the eavesdropping statute did not stop there. Id.

Rather, the eavesdropping statute’s broad definition of “conversation” made every conversation between two people private even if the participants did not. As a result, recording “political debates in a park” or “public interactions of police officers with citizens” or “loud arguments in the street” would violate the statute. Clark, ¶ 21. These types of conversations are not private, and recording these “public” conversations does not implicate the privacy concerns used to justify the eavesdropping statute. Id. at ¶¶ 28-29. Moreover, all recordings, not just secret or unauthorized recordings, were prohibited. Id. The consequence of this is that someone who openly recorded a conversation with the knowledge of everyone, but without everyone’s express consent, could be found to violate the statute. Id. at ¶ 22. While implied consent may be a defense, the person could only find out after being charged with the crime of eavesdropping. Id.

For these reasons, the Court concluded in Clark that “statute burdens substantially more speech than is necessary to serve the interests the statute may legitimately serve.” Id. at ¶ 23. It held that “section (a)(1)(A) of the eavesdropping statute is overbroad because a substantial number of its applications are unconstitutional, judged in relation to the statute’s plainly legitimate sweep.”  Id.

In the second case related to the eavesdropping statute, Melongo, the Court held that the publishing provision of the eavesdropping statute was unconstitutional. Melongo, 2014 IL 114852 ¶ 36. The defendant in Melongo not only recorded a conversation with the other party’s consent, she published the recordings to her website. The Court applied Clark and found the recording section of the eavesdropping statute to be unconstitutional. Because this recording provision was unconstitutional, the court concluded so too was the publishing provision. Id. at ¶ 35.

In the wake of Clark and Melongo the privacy rights of Illinois citizens have arguably been diminished. Everyone would agree that private conversations should be private and not recorded for anyone else’s consumption. But, like an overprotective parent, the Illinois eavesdropping statute simply went too far by making every conversation private, regardless of the participants’ intent and the context of the speech.