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Constitutional clouds over eavesdropping statute

Things aren’t looking so good for Illinois’ controversial eavesdropping statute.

A downstate Circuit Court judge recently ruled the statute unconstitutional, and in Chicago another Circuit Court judge is considering a similar argument.

Meanwhile two federal cases challenging the constitutionality of the law are wending their way through court.

‘Smart phones and dumb laws’

Lawyers from several of those cases will discuss the law at a forum on Smart Phones and Dumb Laws, Wednesday, November 9 at 6 p.m. at DePaul University Law School, 25 E. Jackson, Room 241.

Among those participating are Robert Johnson, who successfully defended Tiawanda Moore against felony eavesdropping charges this summer; Mark Weinberg, who’s representing Chris Drew in a similar case; Jed Stone, who represents Gregory Koger in appealing convictions stemming from videotaping a statement at a public meeting of the Ethical Humanist Society two years ago; and Adam Schwartz of the ACLU, which is challenging the law in federal court.

Civil rights attorney Chris Cooper, a candidate for state’s attorney who’s written on systems that protect abusive officers, will also speak.  He’s challenging State’s Attorney Anita Alvarez, who has enthusiastically embraced the eavesdropping statute.

Among the questions to be addressed, according to a release: “Why does Illinois have this dumb law?”  The law in question makes it a Class 1 felony to audio record law enforcement officers in public.

It’s not a bad question. The Chicago Tribune has called the statute “indefensible” and the Sun Times said “it’s time to take another look at the law.”

Jurors in Moore’s case thought the law was dumb, at least as applied to her; she’d used her cell phone to record Internal Affairs officers who were trying to talk her out of filing a sexual harrassment complaint against another cop.

Ruled unconstitutional

In September, Judge David Frankland of the 2nd Illinois Circuit ruled the law is unconstitutional, violating the First Amendment right to gather information on public officials performing their public duties.  He also found it violates due process rights by “subject[ing] wholly innocent conduct to prosecution.”

Frankland dismissed five felony eavesdropping charges – punishable by up to 15 years in prison for each count (yes, 75 years total) – against Michael Allison, who tried to tape record his trial for violating a local eyesore ordinance because he couldn’t afford to pay for a court reporter.

Crawford County States Attorney Tom Wiseman is expected to appeal the ruling – which means the Illinois Supreme Court would consider the constitutionality of the statute.

In a hearing in Chicago yesterday, Circuit Court Judge Stanley Sacks said he would ask Illinois Attorney General Lisa Madigan to weigh in on constitutional questions in the prosecution of street artist Chris Drew.  Drew was arrested for selling art on the street without a permit – he was seeking to challenge the constitutionality of that ordinance – and charged with eavesdropping when police found he had taped the arrest.

Federal lawsuits

The ACLU is asking a federal appellate court to block future prosecutions of its staff for monitoring police conduct at demonstrations.

In March, Louis Frobe of Lake Villa, Illinois, filed a federal suit against the village of Lindenhurst and three Linderhurst police officers, arguing the eavesdropping law violates his First Amendment right to gather information on public officials.

Frobe was arrested after he began videotaping the scene where he’d been stopped for speeding, believing the officer who’d stopped him was wrong about the speed limit that applied.

“Cell phones give everyday people amazing power to document injustices, protests, and misconduct by police and officials,” but the Illinois eavesdropping statute sharply limits that power, forum organizers say.

A few weeks ago, hundreds of thousands of people watched You Tube videos of a New York cop pepper-spraying young women from Occupy Wall Street.  The videos garnered national attention; lots of TV stations aired them.

In Illinois under this statute, whoever took those videos could well have been prosecuted as felons.

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Category: civil rights

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One Response

  1. Arlene Rakoncay says:

    Thank you for this article. The program was very successful. It was used to inform people about the “dumb” eavesdropping law in Illinois.


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