Ill. judge declares state's eavesdropping law unconstitutional

Amanda Simmons | Newsgathering | News | July 30, 2012

An Illinois judge ruled last week that the state’s eavesdropping law – one of the broadest restrictions on audio recording in the nation – is unconstitutional.

The decision granted a request for dismissal made by Annabel K. Melongo, a 39-year old woman who faced criminal charges under the Illinois Eavesdropping Act. The controversial law criminalizes the audio recording of any communication without the consent of all parties involved, regardless of whether the conversation was intended to be private. Melongo, who is representing herself in court, recorded three phone calls with a clerk at the Cook County Court Reporter’s office in Illinois without consent and posted them on her watchdog website in 2010, incurring six charges of eavesdropping.

The eavesdropping law in Illinois “appears to be vague, restrictive and makes innocent conduct subject to prosecution,” wrote Circuit Court Judge Steven J. Goebel of Chicago in his ruling that was filed on July 26. “[T]he fault of the Statute is that it does not require an accompanying culpable mental state or criminal purpose for a person to be convicted of a felony.”

Melongo submitted a motion in November arguing that the law is unconstitutional because it “violates substantive Free Speech, Freedom of the Press, Petition and Due Process guarantees.”

Although the judge first dismissed the charges against Melongo and declared the eavesdropping statute unconstitutional in an oral order on June 19, this written court opinion complies with the Illinois Supreme Court’s specific rules for a court’s findings of unconstitutionality.

"Undoubtedly my case and other eavesdropping cases will affect how this law is used in Illinois," Melongo said in an e-mail message. "The eavesdropping law in its present form is unconstitutional on its face on the First and Fourteenth Amendments and as applied to the specifics of my case."

In reaching his decision, Goebel cited a federal appellate court’s ruling in May that found that the Illinois Eavesdropping Statute “likely” violates the First Amendment. In that case, the U.S. Court of Appeals in Chicago (7th Cir.) issued a narrow ruling barring enforcement of the law only against the American Civil Liberties Union of Illinois when it records public interactions with law enforcement officers for its police monitoring program.

The Illinois ACLU brought its lawsuit challenging the eavesdropping act against Cook County State Attorney Anita Alvarez, whose office has prosecuted many cases under the law, including Melongo’s.

"The ACLU v. Alvarez case, which was the backbone of my motion to dismiss, was also a big help, if not the biggest help," said Melongo. "I’m extremely pleased with Judge Goebel's ruling in that he had the courage to dismiss my eavesdropping case."

In the ACLU case, The Reporters Committee for Freedom of the Press, joined by several other news media advocacy groups, filed a friends-of-the-court brief in the case. It argued that the criminalization of communications chills socially valuable newsgathering and watchdog activities and suppresses the spreading of important information.

Unable to post bail for a bond initially set at $500,000 and later reduced to $300,000, Melongo spent about 20 months in a Cook County jail and another four months under house arrest. She said the punishment made her "the defendant with the harshest punishment for the eavesdropping law in Cook County, if not in Illinois."

Originally from Cameroon, Melongo speaks English as her third language and has lived in the Chicago area since 2003. The conversations she recorded involved other charges that have been brought against her for computer tampering in 2006, when she worked as a computer programmer for a scandal-ridden and now defunct non-profit organization, the Save-a-Life Foundation. Melongo's motion to dismiss those charges is currently pending.

The Cook County State’s Attorney’s Office did not respond to a request for comment.

Related Reporters Committee resources:

· Can We Tape?: Illinois