Bethany Krajelis Mar. 20, 2014, 1:45pm

An Illinois law that makes it a crime to record a conversation without consent from all of the parties is unconstitutional, the state Supreme Court held today.

In a pair of cases argued before the court in January, the justices unanimously struck down the recording provision of the Eavesdropping Act as overbroad and unconstitutional, noting that “a substantial number of its applications violate the first amendment.”

Written by Chief Justice Rita Garman, the opinions were handed down today in People v. Annabel Melongo and People v. Deforest Clark, both of which came to the Supreme Court  after circuit judges in Cook and Kane counties deemed the statute unconstitutional.

In the Cook County case, defendant Annabel Melongo was charged with three counts of eavesdropping for recording a trio of telephone conversations she had with a court employee in regards to an unrelated computer tampering case.

She was also charged with three counts of divulging information obtained through the use of an eavesdropping device for posting the recordings of these conversations on a website. All of the charges were lodged under the state’s eavesdropping law, 720 ILCS 5/14-2(a).

Melongo spent more than a year in jail awaiting trial only to have a jury reach a deadlock, which led the judge to declare a mistrial.

After the case was assigned to a second judge, Melongo filed a pro se motion asking the court to strike down the law as unconstitutional on first amendment and due process grounds.

The judge granted Melongo’s request, saying the statute “lacks a culpable mental state, subjects wholly innocent conduct to prosecution, and violates substantive due process” under both the Illinois and U.S. constitutions.

In its nine-page opinion, the Supreme Court agreed with the lower court, saying the statute can’t be sustained because it criminalizes innocent conduct.

“The statute criminalizes the recording of conversations that cannot be deemed private: a loud argument on the street, a political debate on a college quad, yelling fans at an athletic event, or any conversation loud enough that the speakers should expect to be heard by others,” Garman wrote.

She added, “None of these examples implicate privacy interests, yet the statue makes it a felony to audio record each one. Judged in terms of the legislative purpose of protecting conversational privacy, the statute’s scope is simply too broad.”

The court further explained that even when conservations do take place in private, “the statute does not distinguish between open and surreptitious recording” and simply bars recording without the consent of all parties.

“Thus,” Garman wrote, “rather than knowing that he or she can proceed legally by openly recording a conversation so that all parties are aware of the presence of an operating recording device, the individual must risk being charged with a violation of the statute and hope that the trier of fact will find implied consent.”

In addition the recording provision, the justices found the publishing provision – the one that charged Melongo with divulging information obtained through the use of an  eavesdropping device – to be overbroad as well.

Garman noted in the opinion that the court’s analysis was guided by its holding in Clark, the Kane County case that while it wasn’t consolidated with Melongo, was argued on the same day and presented the justices with similar issues.

In that case, defendant DeForest Clark was indicted by a grand jury on two counts of eavesdropping for recording a conversation he had with his attorney and another one he had with his attorney and a judge without either of their consent.

Like Melongo, Clark sought dismissal of the indictment, arguing that the statute violated his first amendment and due process rights.

A Kane County judge granted his motion, moving the matter to the directly to the Supreme Court given that the ruling invalidated a state law.

In analyzing the statute, Garman wrote that it was amended in 1994 to define conversation, a move that effectively criminalized the “recording of all conversations except in limited circumstances specifically. Thus, the scope of the eavesdropping statute is quite broad.”

Because the statute is content-neutral, Garman explained the court had to determine it “if it advances important governmental interests unrelated to the suppression of free speech” and if it burdens “substantially more speech than necessary to further those interests.”

The court found that while the eavesdropping statue has a legitimate purpose in preventing private conservations from being recorded, “it does not stop there” and goes on to “criminalize a whole range of conduct” mentioned in the Melongo opinion that don’t “implicate privacy interests.”

Garman wrote, “If another person overhears what we say, we cannot control to whom that person may repeat what we said. That person may write down what we say and publish it, and this is not a violation of the eavesdropping statute. Yet if that same person records our words with an audio recording device, even if it is not published in any way, a criminal act has been committed.”

“The person taking notes may misquote us or misrepresent what we said, but an audio recording is the best evidence of our words. Yet, the eavesdropping statute bars it.”

Garman then goes on to note that while many people probably don’t want their voices broadcast on the Internet, devices like smartphones have made this “to a certain extent beyond our control.”

“Illinois’ privacy statute goes too far in its effort to protect individuals’ interest in the privacy of their communications,” Garman wrote for the court in Clark. “The statute therefore burdens substantially more speech than is necessary to serve the interests the statute may legitimately serve.”

Also today, the Supreme Court issued opinions in the following cases: Home Star Bank and Financial Services, etc., et al., v. Emergency Care and Health Organization, Ltd., et al. ; Spanish Court Two Condominium Association v. Lisa Carlson; People v Javier Fernandez; People v Christopher Easley;People v. Addolfo DavisPeople v. Derrick A. Cummings ; BAC Home Loans Serving, LP, etc., v. Kim E. MitchellIn re Marriage of Robert N. Tiballi and Sheila J. Ilagan Tiballi.

All of the opinions can be found on the court’s website at

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