Defendants being prosecuted under the Illinois Eavesdropping Act for recording police and other public officials are fighting back, thus far with mixed success.

The constitutionality of the Illinois Eavesdropping Act, 720 ILCS 5/14-1 et seq, has been placed at issue in matters pending before the Illinois Supreme Court and the Seventh Circuit Court of Appeals.

People v Allison

In a 12-page order entered September 15, 2011, in People v Michael D. Allison, No 2009-CF-50, Judge David K. Frankland of the circuit court of Crawford County held that the Eavesdropping Act is unconstitutional in that it violates substantive due process and the First Amendment of the United States Constitution.

Allison's criminal matter arose out of an ordinance violation citation that the City of Robinson issued regarding an alleged abandoned car on his property. According to the circuit court's order, Allison and law enforcement authorities had a number of encounters in connection with the citation in which Allison allegedly used a digital recorder to surreptitiously record conversations with officials, including police officers, employees of the Crawford County circuit clerk and the Robinson city attorney's office, and a judge presiding over his case, while in court.

Based on those encounters, in April 2009, the Crawford County State's Attorney filed an information alleging five counts of eavesdropping under 720 ILCS 5/14-2(a)(1). Allison moved to dismiss, arguing that the Eavesdropping Statute is void for vagueness, violates due process, and violates the First Amendment of the United States Constitution.

The circuit court rejected Allison's vagueness argument but accepted his contentions that the statute violates substantive due process and the First Amendment of the United States Constitution. Citing the supreme court's discussion of the rational basis test for constitutionality in People v Madrigal, 241 Ill 2d 463, 948 NE2d 591 (2011), the court said, "The Illinois Eavesdropping Statute would potentially punish as a felony a wide array of wholly innocent conduct," including recording a police officer's directions to the courthouse or instructions on where to pay a speeding ticket.

The court also found that recording court proceedings, though possibly distracting or disruptive and unquestionably within the authority of the Illinois Supreme Court to regulate under SCR 63(A)(7), had nothing to do with the statute's purpose of protecting citizens' privacy and included that action in its examples of conduct that the eavesdropping statute impermissibly, in its view, prohibits.

The circuit court also found that the defendant possessed a right under the First Amendment of the U.S. Constitution to gather information by audio recording public officials involved in performing their public duties and that the eavesdropping statute unconstitutionally prohibits such conduct without the public official's consent. "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." Order at 12.

Thomas Wiseman, State's Attorney for Crawford County, said Allison's actions in surreptitiously recording officials, including a judge in her courtroom, were far less innocent than the media's oft-cited example of parents recording their children's sporting events in violation of the eavesdropping statute. Wiseman said his office has offered Allison reasonable plea opportunities and expressed his disappointment in what he considers the media's unreasonable focus on the maximum penalties allowable under the eavesdropping statute.

Illinois v Alvarez

Wiseman and the Illinois Attorney General have filed a notice of appeal with the Illinois Supreme Court, which has assigned the matter docket number 113221. Ed Yohnka, a spokesperson for the American Civil Liberties Union of Illinois, said the organization plans to file an amicus brief.

"We continue to think that the Eavesdropping Act is unconstitutional. We are challenging it in the federal court and we look forward to participating in this challenge in state court." Allison's attorney, William A. Sunderman of Charleston, said that a national press association was also, at press time, considering filing an amicus brief.

The ACLU argued another case involving the Eavesdropping Act, ACLU of Illinois v Alvarez, No 11-1286, 2010 WL 4386868, before the seventh circuit court of appeals in September 2010. As reported by LawPulse, A First Amendment right to audiorecord police? in the October 2010 IBJ, the ACLU is challenging the constitutionality of the statute as applied to certain audio recordings of police. The federal district court for the Northern District of Illinois dismissed the ACLU's Preliminary Injunction Motion. At presstime, the appeals court had not yet issued a decision.

The circuit court's order in Allison is available on Illinois Lawyer Now at http://iln.isba.org/sites/default/files/blog/2011/09/Cell%20phones%20and%20eavesdropping/Allison%20order.pdf. For a lively question-answer session addressing both sides of the statute, listen to the oral argument before the seventh circuit panel on the court's website, http://www.ca7.uscourts.gov/. ISBA members have also discussed the case on ISBA's general electronic discussion group; to access the discussions and weigh in with your own comments, log in at http://www.isba.org/discussions and look for posts in late September 2011.