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In the days when police brutality and public official corruption pump through the veins of society as a fermenting virus, a critical analysis of a controversial law curtailing efforts to intensify public awareness of government official transgressions is undertaken. In the great State of Illinois, legislative amendments to the Illinois Eavesdropping Act have established a moratorium on the audio recording, without prior consent, of any judge, state's attorney or law enforcement officer while in the performance of his or her official duties, regardless of whether or not the public official(s) had any objective, justifiable or reasonable expectation of privacy when the speech at issue was uttered. In short, the Act makes it a criminal offense (Class 1 felony) to audio record the spoken dialogue of on-duty government officials without prior consent, not just in private settings, but anywhere, at any time, and under most any circumstance, even in public streets and walk ways. The central issue that must be answered is whether or not private citizens have a constitutionally protected First Amendment right to gather, record and disseminate the publicly uttered, non-private speech of on-duty government officials. A comprehensive examination of all of the current case law on point, federal and state, has answered that question unequivocally in the affirmative. In its existing capacity, the Illinois Eavesdropping Act's over-broad applicability, coupled with police exemptions allowing officers to record conversations with private citizens without their prior consent, elicits brazen viewpoint speaker discrimination with respect to the well-established constitutionally protected First Amendment right to express and/or disseminate the audio documentation of public, non-private, conversations. In addition, Fourth Amendment jurisprudence starkly reveals that one cannot claim, even if statutorily permitted, Fourth Amendment privacy protection in order to squash attempts to publicize audible utterances and conduct captured with electronic recording devices in public, non-private settings. Finally, when analyzing the issue from a public policy perspective, the Act's unjustifiably over-broad construction is brought to light in even further detail with the expos© of alarming statistics and studies illustrating the pervasiveness of law enforcement abuses of citizens and other general public official corruption. When, in a free society, the people are imprisoned for pursing government official accountability by openly audio recording the publicly spoken words of those government officials, is that society which purports to be free any longer truly so? Watching the Watchmen may provide some answers.

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Northern Illinois University Law Review

Suggested Citation

Robert J. Tomei Jr., Comment, Watching the Watchmen: The People’s Attempt to Hold On-Duty Law Enforcement Officers Accountable for Misconduct and the Illinois Law that Stands in Their Way, 32 N. Ill. U. L. Rev. 385 (2012).

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