People v. Clark, 2014 IL 115776

DeForest Clark was indicted in Kane County on two counts under Illinois’ eavesdropping statute for recording conversations (one with his opposing counsel and one in a courtroom with a judge) without consent of all parties.
Clark moved to dismiss, arguing the statute violated substantive due process (no mens rea requirement) and the First Amendment (right to record public officials/court proceedings).
The State defended the statute as protecting conversational privacy and argued there is no recognized First Amendment right to secretly record court proceedings.
The circuit court granted Clark’s motion, finding the statute unconstitutional under substantive due process and the First Amendment (as-applied to public/courtroom contexts).
The Illinois Supreme Court reviewed de novo, focused on a facial First Amendment overbreadth challenge to section 14-2(a)(1)(A) following the 1994 amendment that defined “conversation” to require consent of all parties regardless of any expectation of privacy.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether § 14-2(a)(1)(A) is overbroad under the First Amendment	State: statute is content-neutral and advances important privacy interests; legislature can err on the side of protecting privacy	Clark: statute criminalizes a wide range of nonprivate, protected recording (public speech, police-citizen encounters, courtroom) and chills speech	The Court held the statute is substantially overbroad and unconstitutional under the First Amendment

People v. Beardsley, 115 Ill. 2d 47 (1986) (statute originally interpreted to protect conversations where parties reasonably expect privacy)
People v. Herrington, 163 Ill. 2d 507 (1994) (no eavesdropping when a party records a conversation they participate in)
American Civil Liberties Union v. Alvarez, 679 F.3d 583 (7th Cir. 2012) (recording as protected expressive conduct; restricting recording devices suppresses speech)
United States v. Stevens, 559 U.S. 460 (2010) (facial challenges and overbreadth framework)
Virginia v. Hicks, 539 U.S. 113 (2003) (overbreadth doctrine aims to prevent chilling of protected speech)
Board of Airport Commissioners v. Jews for Jesus, 482 U.S. 569 (1987) (overbreadth requires realistic danger of chilling others’ rights)
City Council v. Taxpayers for Vincent, 466 U.S. 789 (1984) (overbreadth doctrine limitations)
Turner Broadcasting System, Inc. v. FCC, 520 U.S. 180 (1997) (intermediate scrutiny for content-neutral regulations)
United States v. O’Brien, 391 U.S. 367 (1968) (test for content-neutral restrictions)
Bartnicki v. Vopper, 532 U.S. 514 (2001) (privacy interests can justify restrictions on disclosure of private communications)
People v. Ceja, 204 Ill. 2d 332 (2003) (consent under statute may be express or implied)