IL Ban on Recording Public Officials Overturned

The Illinois Supreme Court has helped the cause of transparency and accountability by unanimously striking down that state’s law that forbid the recording of police officers and other public officials while on duty. A federal court had already struck down the law in regard to police officers, now it applies to other public officials as well.

The justices note that the eavesdropping ban “criminalizes a wide range of innocent conduct,” including “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. None of these examples implicate privacy interests, yet the statute 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 adds that “even when the recorded conversation is held in private, the statute does not distinguish between open and surreptitious recording,” insteading prohibiting “any recording of a conversation absent the consent of all parties.” That means someone who openly records a conversation “must risk being charged with a violation of the statute and hope that the trier of fact will find implied consent.”

Because the eavesdropping ban “burdens substantially more speech than is necessary to serve a legitimate state interest in protecting conversational privacy,” the court concludes, “it does not survive intermediate scrutiny. We hold that the recording provision is unconstitutional on its face because a substantial number of its applications violate the first amendment.”

It’s possible that a narrower, more targeted law could pass constitutional muster, but clearly not one this broad.

About Ed Brayton

After spending several years touring the country as a stand up comedian, Ed Brayton tired of explaining his jokes to small groups of dazed illiterates and turned to writing as the most common outlet for the voices in his head. He has appeared on the Rachel Maddow Show and the Thom Hartmann Show, and is almost certain that he is the only person ever to make fun of Chuck Norris on C-SPAN.

  • doublereed

    What was the law even trying to do? Prevent people from recording police officers? Because I’m pretty sure any law that tries that would be unconstitutional.

  • matty1

    How could there be a privacy argument anyway if we’re talking about the actions of public officials, doing their job, in public? Next up, not releasing the text of laws to protect legislators privacy.