Judge rules Ill. eavesdropping law unconstitutional

Lilly Chapa | Newsgathering | News | February 25, 2013

A former Illinois elementary school principal cannot be charged under the state's controversial eavesdropping law because the law was not narrowly tailored to serve a significant governmental interest, rendering it unconstitutional, a judge ruled last week.

Circuit Judge David Akemann dismissed the Geneva School District’s lawsuit against employee Margaret Pennington because Illinois’ eavesdropping law punishes innocent conduct while restricting the ability of individuals to record conversations.

“The eavesdropping statute, on its face, violates the protections of substantive due process by failing to include an element of criminal intent which necessarily means that it criminalized wholly innocent conduct,” Akemann wrote in his opinion.

As an example, Judge Akemann noted in his opinion that a person recording a child's baseball game could inadvertently record nearby conversations in violation of the presently written law.

In Illinois, all parties must consent to being recorded at a gathering or meeting, but public meetings are exempt from the rule. The controversial eavesdropping law is one of the strictest in the nation and has been declared unconstitutional by state judges multiple times. Recently, Illinois judges dropped eavesdropping charges against a man who recorded his interactions with police and a woman who recorded her conversations with a county official. In both cases, the judges opined that the law does not address the issue of criminal intent.

"The purpose of this statute is to protect citizen's conversational privacy but the legislature has actually removed the requirement that there be any reasonable expectation of privacy and thus subjecting any and all recorded conversations to potential exposure to the consequences of violating the eavesdropping statute," Akemann stated.

The district, along with Assistant Superintendents Dawn George and Patricia O’Neil, sued Pennington in 2011 for more than $100,000 in damages after she surreptitiously recorded conversations with staff members without their consent. The lawsuit also called for the destruction of the recordings and an injunction to prevent Pennington from recording future meetings.

George and O’Neil had expressly asked Pennington not to record their conversations.

Pennington argued that the school district offices are public places and conversations within them are exempt from the all-party consent requirement, but the district argued that the conversations were not of public concern and therefore not subject to the First Amendment.

Pennington’s attorney did not return a phone call and the school district's attorney declined to comment.

Related Reporters Committee resources:

· Reporter's Recording Guide