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The Illinois eavesdropping statute restricts a medium of expression commonly used for the preservation and communication of information and ideas, thus triggering First Amendment scrutiny. Illinois has criminalized the nonconsensual recording of most any oral communication, including recordings of public officials doing the public’s business in public and regardless of whether the recording is open or surreptitious. Defending the broad sweep of this statute, the State’s Attorney relies on the government’s interest in protecting conversational privacy, but that interest is not implicated when police officers are performing their duties in public places and engaging in public communications audible to persons who witness the events. Even under the more lenient intermediate standard of scrutiny applicable to content-neutral burdens on speech, this application of the statute very likely flunks. The Illinois eavesdropping statute restricts far more speech than necessary to protect legitimate privacy interests; as applied to the facts alleged here, it likely violates the First Amendment’s free-speech and free-press guarantees.
Judge Diane Schwerm Sykes (more quotes by Judge Diane Schwerm Sykes or books by/about Judge Diane Schwerm Sykes)
(1957-) Federal judge on the U.S. Court of Appeals for the Seventh Circuit, former Justice of the Wisconsin Supreme Court
in the ruling for the U.S Court of Appeals for the 7th Circuit, ALCU of Illinois v. Anita Alvarez (2012)
Constitution, Individual Rights, Law, Media, Press, Speech