The Illinois eavesdropping statute restricts a medium of expression commonly used for the preservation and communication of information and ideas, thus triggering First Amendment scrutiny. Illinois has criminalized the nonconsensual recording of most any oral communication, including recordings of public officials doing the public’s business in public and regardless of whether the recording is open or surreptitious. Defending the broad sweep of this statute, the State’s Attorney relies on the government’s interest in protecting conversational privacy, but that interest is not implicated when police officers are performing their duties in public places and engaging in public communications audible to persons who witness the events. Even under the more lenient intermediate standard of scrutiny applicable to contentneutral burdens on speech, this application of the statute very likely flunks. The Illinois eavesdropping statute restricts far more speech than necessary to protect legitimate privacy interests; as applied to the facts alleged here, it likely violates the First Amendment’s freespeech and free-press guarantees.

Even today, with the right to free speech expanding in all directions, it remains a partial, a qualified, right. To make it complete would render unconstitutional defamation law, copyright law, trade secret law, and trademark law; tort liability for wiretapping, other electronic eavesdropping, and publicly depicting a person in a “false light”; laws criminalizing the publication of military secrets and the dissemination of child pornography; conspiracy law (thus including much of antitrust law); prohibitions of criminal solicitation, threats and fighting words, securities fraud, and false advertising of quack medical remedies; the regulation of marches, parades, and other demonstrations whatever their objective; limitations on free speech in prisons; laws limiting the televising of judicial proceedings; what little is left of permitted regulation of campaign expenditures; public school disciplining of inflammatory or disruptive student speech; the attorneyclient, spousal, and physician-patient privileges in cases in which an attorney or spouse or physician would like to speak but is forbidden by the privilege to do so; laws making medical records confidential; and prohibitions against the public disclosure of jurors’ names in cases in which jurors might be harassed. All these legal restrictions of free speech are permitted

An officer may freeze if he sees a journalist recording a conversation between the officer and a crime suspect, crime victim, or dissatisfied member of the public. He may be concerned when any stranger moves into earshot, or when he sees a recording device (even a cell phone, for modern cell phones are digital audio recorders) in the stranger’s hand. To distract police during tense encounters with citizens endangers public safety and undermines effective law enforcement.

"If you permit the audio recordings, they'll be a lot more eavesdropping.…There's going to be a lot of this snooping around by reporters and bloggers," U.S. 7th Circuit Judge Richard Posner said. "Yes, it's a bad thing. There is such a thing as privacy."

“'A statute intended to prevent unwarranted intrusions into a citizen's privacy cannot be used as a shield for public officials who cannot assert a comparable right of privacy in their public duties,' the judge wrote in his decision dismissing the five counts of eavesdropping charges against defendant Michael Allison."

Although Coulson has long insisted he knew nothing about the illegal activity, sources who worked at the tabloid told the Times Coulson not only knew about it, he actively encouraged it. A dozen former reporters said the hacking was so pervasive at News of the World that everyone knew about it. "The office cat knew," one longtime reporter said.