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Illinois Eavesdropping Statute Declared Unconstitutional On First Amendment Grounds

Matthew A. Kirsh, ISBA Family Law Newsletter, May 2014

On March 20, 2014, the Illinois Supreme Court decided the case of People v. Clark, 2014 IL 115776. The Supreme Court held that Section (a)(1)(A) of the Eavesdropping Statute (720 ILCS 5/14-2 (a)(1)(A) is unconstitutional as a violation of the first amendment to the United States Constitution. Specifically, the Court held that “Section (a)(1)(A) of the Eavesdropping Statute is overbroad because a substantial number of its applications are unconstitutional, judged in relation to the statute’s plainly legitimate sweep.”

The Clark case arose out of two conversations recorded by the Defendant, DeForest Clark. Mr. Clark was involved in a case in the Circuit Court of Kane County when he recorded the two conversations. The first recording was of a conversation between himself, Judge Robert Janes, and attorney Colleen Thomas in open court. The second conversation recorded by Mr. Clark was a conversation between him and Ms. Thomas in the hallway of the courthouse. Mr. Clark was charged with two counts of violating the Illinois Eavesdropping Statute.

The Illinois Eavesdropping Statute, 720 ILCS 5/14-2(a)(1)(A), 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 the parties to such conversation or electronic communication.

The Statute goes on to define “conversation” as “any oral communication between two or more persons regardless of whether one or more of the parties intended their conversation to be of a private nature under circumstances justifying that expectation.” (720 ILCS 5/14-1(d)).

The statute at issue is a 1994 amendment to the Eavesdropping Act. Earlier cases, specifically, People v. Beardsley, 115 Ill.2d. 47 (1986) and People v. Herrington, 163 Ill.2d. 507 (1994), held that there must be an expectation of privacy in a conversation in order for the eavesdropping statute to apply. Generally, a party to a conversation with another individual has no expectation of privacy vis a vis the other party to the conversation. As quoted above, the 1994 amendment to the statute specifically eliminated the expectation of privacy requirement. After 1994, the recording of any conversation without the consent of all parties to the conversation is a crime, even if nobody involved in the conversation had any expectation that the conversation would be private.

Mr. Clark attacked the constitutionality of the statute on both substantive due process grounds and first amendment grounds. Because the Court held the statute unconstitutional on first amendment grounds, the substantive due process argument was never reached.

Because the right of free speech is so zealously protected by the law, a Court can declare a statute unconstitutional if it is so overbroad that it has a chilling effect on speech in general, even if it is not unconstitutional as applied to the particular Defendant. In the Clark case, the Supreme Court applied the overbreadth doctrine which holds that for its application to be appropriate, “there must be a realistic danger that the statute will significantly compromise recognized first amendment protections of parties not before the court.”

The Illinois Eavesdropping Statute is content-neutral in that it regulates speech without discrimination as to the messenger or the context of the message. In such circumstances, the constitutionality of a content-neutral regulation will be sustained under the first amendment if it advances important governmental interests unrelated to the suppression of free speech and does not burden substantially more speech than necessary to further those interests.

In Clark, both the State and Defendant agreed that the Eavesdropping Statute was intended to protect individuals from the surreptitious monitoring of their conversations by eavesdropping devices. While the State’s interest in protecting such conversations is legitimate, the statute, as written, essentially criminalizes the recording of all conversations. (The statute does contain certain exceptions to the general rule, almost all of which are law enforcement related.) As the Clark court said, the statute “criminalizes a whole range of conduct involving the audio recording of conversations that cannot be deemed in anyway private. For example, the statute prohibits recording (1) a loud argument on the street; (2) a political debate in the park; (3) the public interactions with police officers with citizens (done by a member of the general public); (4) any other conversation loud enough to be overheard by others whether in a private or public setting.” As the Court stated, none of these examples implicate privacy interests, yet the statute makes it a felony to record each one.

What does this mean for the practitioners of family law in Illinois? First of all, in general, we do not need to worry about breaking the law every time a client comes into our office with a recording. Once the lawyer establishes that the recording is of a conversation that did not have an expectation of privacy, the lawyer should feel confident that listening to the recording is not illegal.

More importantly, it appears that the pool of admissible evidence to prove a conversation just grew much deeper. Assuming that the legislature enacts a statute that satisfies the first amendment concerns of the Clark court, a recorded conversation between spouses will not be subject to a Motion in Limine on the grounds that it was recorded in violation of the Eavesdropping Statute. Currently, the Eavesdropping Statute provides that any conversation recorded in violation of the statue is inadmissible in any civil or criminal proceeding. (720 ILCS 5/14-5) While this prohibition on illegal recordings will still be applicable, the size of the class of illegal recordings has been greatly reduced.

For our purposes, as practitioners of family law, conversations between spouses are now fair game for recording. Lawyers who do not want their clients’ conversations with their spouses recorded may want to consider sending out a letter at the beginning of every case stating that the client has an expectation that every conversation between the client and the spouse is private. The effectiveness of such a letter is certainly questionable and would not do anything to turn an obviously public conversation into a private one.

In the wake of the Clark case, the legislature will have to amend the Eavesdropping Statute. All practitioners of family law should keep an eye out for the amended statute and be familiar with its contents. However, the Illinois Supreme Court was very clear that in order to be constitutional, the statute must be drafted to advance the state’s interest in protecting private conversations against eavesdropping without criminalizing speech for which there is no expectation of privacy.

As lawyers we must now advise our clients to be especially careful of what they say to their spouses or anyone else for that matter. In this age of cell phones with recording devices, no conversation is safe. A colleague of mine, paraphrasing her grandmother, once said, “If you wouldn’t want it on the front page of the New York Times, don’t say it.” After People v. Clark, those are words to live by.

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