Wednesday, April 16, 2014

FYI: Ill Sup Ct Rules Eavesdropping Statute Unconstitutional in Telephone Call Recording Case

The Illinois Supreme Court recently affirmed a trial court ruling that the recording and publishing provisions of the Illinois anti-eavesdropping statute, 720 ILCS 5/14-2(a)(1) and (3), violated the First Amendment because it burdened substantially more speech than necessary to serve a legitimate state interest.


In so ruling, the Court held that the recording provision, 720 ILCS 5/14-2(a)(1), was overbroad as it criminalized the recording of any conversation even those conversations where no privacy interests were implicated.


As to the publishing provision, 720 ILCS 5/14-2(a)(3), the Court held this provisions was overbroad because it criminalized the publication of any recording made on a cellphone or other such device.


A copy of the opinion is available at:



Defendant was charged with computer tampering in a separate and unrelated case.  On June 18, 2008, Defendant was to be arraigned.  However, the docket, the court call sheet and the judge’s half sheet indicated Defendant was not present in court and the arraignment did not take place.


Defendant proceeded to obtain the court transcript for June 18, 2008 which stated Defendant was present and arraigned. Defendant attempted to persuade the court reporter to change the transcript on the ground that it was incorrect, but had no success.  The court reporter referred Defendant to the Assistant Administrator of the Cook County’s Reporter’s Office, Criminal Division (“Administrator”). The Administrator informed Defendant that any dispute over the accuracy of a transcript had to be taken up with the Judge.


Defendant recorded three subsequent telephone conversations with the Administrator, without informing Administrator the conversations were being recorded. Defendant then posted the recordings and their transcripts on her website.


Defendant was charged with 3 counts of eavesdropping under 720 ILCS 5/14-2(a)(1), and three counts of using or divulging information obtained through the use of an eavesdropping device under 720 ILCS 5/14-2(a)(3).


720 ILCS 5/14-2 states:



(a) A person commits eavesdropping when he:


(1) Knowingly and intentionally uses an eavesdropping device for the purpose of hearing or recording all or any 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 108A or Article 108B of the “Code of Criminal Procedure of 1963”, approved August 14, 1963, as amended; or

. . .

(3) Uses or divulges, except as authorized by this Article or by Article 108A or 108B of the “Code of Criminal Procedure of 1963”, approved August 14, 1963, as amended, any information which he knows or reasonably should know was obtained through the use of an eavesdropping device.



Defendant moved to declare the eavesdropping statute unconstitutional because it violated the First Amendment and Due Process clauses. The trial court agreed, and declared the eavesdropping statute unconstitutional as applied to Defendant.  Specifically, the trial court held “the statute appears to be vague, restrictive, and makes innocent conduct subject to prosecution.”   Moreover, the trial court determined the eavesdropping statute “lacks a culpable mental state, subjects wholly innocent conduct to prosecution and violates substantive due process.”  The State appealed and the Illinois Supreme Court granted review.


On appeal, the State argued the eavesdropping statute did not violate the Due Process clause on its face because “it does contain a culpable mental state requiring both knowledge and intent.”  The State also argued the eavesdropping statute is constitutional as applied to the defendant because “she admits having recorded and divulged the contents of the conversation knowingly and intentionally.”


Further, the State claimed the eavesdropping statute did not raise a First Amendment issue.  However, the State argued, even if the Court determined there was a First Amendment issue, the eavesdropping statute was constitutional as it is a “content-neutral restriction on the time, place, and manner of the exercise of first amendment rights and that it is narrowly tailored.”


The Illinois Supreme Court first examined whether the eavesdropping statute invoked any First Amendment considerations.  The Court found it implicated First Amendment issues and the trial court properly considered them in determining the eavesdropping statute was unconstitutional.  Thus, the Court held the First Amendment was “sufficiently implicated by the circuit court’s ruling to permit consideration of defendant’s First Amendment argument.”


The Court proceeded to determine the proper level of scrutiny to apply to its Constitutional analysis of the eavesdropping statute.  Defendant argued it was subject to intermediate scrutiny and the State conceded the issue.


The Illinois Supreme Court next examined if the eavesdropping statute violated the First Amendment.  The Court noted the eavesdropping statute will be upheld under the first amendment if it “advances important governmental interests unrelated to the suppression of free speech and does not substantially burden more speech than necessary to further those interests.”  Turner Broadcast System, Inc. v. Federal Communications Comm’n, 520 U.S. 180, 189, (1997); United States v. O’Brien, 391 U.S. 367, 376-77 (1968).  


The Court found the eavesdropping statute “criminalized the recording of conversations that cannot be deemed private.”  The Court thus determined the eavesdropping statute was too broad, as it made it a felony to record any conversation even those where no privacy interests were implicated. Thus, the Court held the recording provision “burdens substantially more speech than is necessary to serve a legitimate state interest in protecting conversational privacy” and found it unconstitutional. 


Defendant also argued the publishing provision was unconstitutional. The publishing provision made it a crime to publish any “recording made on a cellphone or other such device, regardless of consent.” The Illinois Supreme Court determined the publishing provision was unconstitutional because it violated the First Amendment. 


The Court based its ruling on Bartnicki v. Vopper, 532 U.S. 514 (2001), which held that “under the First Amendment, the state may not bar the disclosure of information regarding a matter of public importance when the information was illegally intercepted by another party who provided it to the disclosing party.”  The Court stated it did not matter that the contents of Defendant’s recorded conversations were not a matter of public importance as Defendant’s recordings “cannot be characterized as illegally obtained.”


Thus, the Court held that Defendant “cannot be constitutionally prosecuted for divulging the contents of the conversations she recorded, just as the media defendants in Bartnicki could not be prosecuted for disclosing recorded communications.” 


The Court affirmed the judgment of the trial court, and held the recording and publishing provisions of the eavesdropping statute were unconstitutional.







Ralph T. Wutscher
McGinnis Wutscher Beiramee LLP
The Loop Center Building
105 W. Madison Street, 18th Floor
Chicago, Illinois 60602
(312) 551-9320
(312) 284-4751
(312) 493-0874


Admitted to practice law in Illinois



          McGinnis Wutscher Beiramee LLP





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