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.