The ACLU has argued there should be no laws that create a penalty for recording police or public officials, especially in public places

One of the strictest laws against recording, requiring two party consent, has been struck down by the Illinois state supreme court.

The court ruled that the eavesdropping law was unconstitutional. “The statute appears to be vague, restrictive and makes innocent conduct subject to prosecution,” an order from the court stated. Also, the statute “lacks a culpable mental state, subjects wholly innocent conduct to prosecution, and violates substantive due process” under both the United States and Illinois constitutions.

The decision came in the case of Annabel Melongo, who was “charged with computer tampering in an unrelated case.” Melongo was scheduled to be arraigned on June 18, 2008, however, a “docket sheet, the judge’s half sheet, and the court call sheet for that date indicate” she was not in court. An arraignment did not take place.

Melongo later obtained a copy of the official court transcript for that date. It said she was present in court and had been arraigned. A court reporter had her contact her supervisor, Pamela Taylor, the Assistant Administrator of the Cook County Court Reporter’s Office in the Criminal Division.

Taylor informed Melongo that “any dispute over the accuracy of the transcript” had to be presented to the judge. Melongo then chose to record three phone conversations and post them and transcripts of the conversations on her website. She was then charged with three counts of eavesdropping and three counts of “divulging information obtained through the use of an eavesdropping device.”

Melongo filed a dismissal motion arguing that she was permitted to record the conversations because she suspected that another party in the conversation was committing or about to commit a conspiracy. The trial court actually sided with the State of Illinois and precluded her from raising the unconstitutional nature of the eavesdropping law in her defense. It subsequently denied a motion to reconsider.

For years, there have been challenges to this law. In 2012, the law was found unconstitutional by a judge because it had the potential to criminalize “wholly innocent conduct.”

According to a Chicago Tribune report, Judge Stanley Sacks found the law was unconstitutional because it has the potential to criminalize “wholly innocent conduct.” This ruling came in the case of an artist named Christopher Drew.

In December 2009, Drew, who has a history of challenging the city’s restrictions on the selling of art, was peddling silk-screened patches for $1 in an act of civil disobedience. A First Amendment lawyer and a team of photographers filmed his arrest. The police let the filming go on, and Drew was arrested. When it was time for Drew to face his charges, he found out he had been given a Class 1 felony charge for violating the Illinois Eavesdropping Act and filming his arrest. (Had he been convicted, he would have faced a possible sentence of fifteen years in prison.)

There was a case involving a man who faced up to 75 years in prison after secretly recording a judge and police officers. An Illinois judge ruled in September 2011 his case that the law was unconstitutional and noted, for example, that a “defendant recording his case in a courtroom has nothing to do with an intrusion into a citizen’s privacy.” Under the law, he could be prosecuted.

The ACLU of Illinois has challenged the law. The Reporters Committee for Freedom of the Press, American Society of News Editors, Association of Capitol Reporters and Editors, Citizen Media Law Project, National Press Photographers Association, Radio Television Digital News Association and the Society of Professional Journalists have each supported the ACLU’s effort.

As the ACLU has argued, there is a “First Amendment right to gather, record, and disseminate information on the performance of public officials.” The “basic tools for gathering, recording, and disseminating expression are changing dramatically in free societies around the world.” There should be no laws that create a penalty for recording police or public officials, especially in public places.

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