                                  Illinois Official Reports

                                          Supreme Court



                                  People v. Melongo, 2014 IL 114852



Caption in Supreme           THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v.
Court:                       ANNABEL MELONGO, Appellee.

Docket No.                   114852

Filed                        March 20, 2014

Held                         A defendant could not be criminally prosecuted for divulging the
(Note: This syllabus         contents of conversations she recorded in violation of the
constitutes no part of the   eavesdropping statute where that statutory prohibition itself, in its
opinion of the court but     overbreadth, was unconstitutional, in violation of the first amendment.
has been prepared by the
Reporter of Decisions
for the convenience of
the reader.)

Decision Under               Appeal from the Circuit Court of Cook County, the Hon. Steven J.
Review                       Goebel, Judge, presiding.



Judgment                     Circuit court judgment affirmed.


Counsel on                   Lisa Madigan, Attorney General, of Springfield, and Anita M.
Appeal                       Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg, Assistant
                             State’s Attorney, of counsel), for the People.

                             Gabriel Bankier Plotkin, Daniel M. Feeney and Alexandra K. Block,
                             of Miller Shakman & Beem LLP, of Chicago, for appellee.

                             Harvey Grossman and Adam Schwartz, of Roger Baldwin Foundation
                             of ACLU, Inc., of Chicago, and Richard J. O’Brien and Sean
                             Siekkinen, of Sidley Austin LLP, of Chicago, for amicus curiae
                             American Civil Liberties Union of Illinois.
     Justices                 CHIEF JUSTICE GARMAN delivered the judgment of the court,
                              with opinion.
                              Justices Freeman, Thomas, Kilbride, Karmeier, Burke, and Theis
                              concurred in the judgment and opinion.




                                               OPINION

¶1         Defendant Annabel Melongo was charged with violations of section 14-2 of the Criminal
       Code of 1961 (720 ILCS 5/14-2 (West 2008)), which defines the offense of eavesdropping.
       The circuit court of Cook County found the statute unconstitutional. Thus, appeal lies directly
       to this court. Ill. S. Ct. R. 302 (eff. Oct. 4, 2011).
¶2         We allowed the American Civil Liberties Union of Illinois to file a brief amicus curiae
       pursuant to Supreme Court Rule 345. Ill. S. Ct. R. 345 (eff. Sept. 20, 2010).
¶3         For the following reasons, we affirm the judgment of the circuit court.

¶4                                           BACKGROUND
¶5         Defendant was charged with computer tampering in an unrelated case. The arraignment
       was set for June 18, 2008. The docket sheet, the judge’s half sheet, and the court call sheet for
       that date indicate that defendant was not in court and that the arraignment did not take place.
¶6         Defendant later obtained an official court transcript of the June 18, 2008, proceeding,
       which stated that she was present and was arraigned on that date. Her efforts to have the court
       reporter change the transcript were unsuccessful. The court reporter referred defendant to her
       supervisor, Pamela Taylor, the Assistant Administrator of the Cook County Court Reporter’s
       Office, Criminal Division. In their first telephone conversation, Taylor explained to defendant
       that any dispute over the accuracy of a transcript should be presented to the judge for
       resolution.
¶7         Defendant surreptitiously recorded three subsequent telephone conversations with Taylor
       and posted the recordings and transcripts of the conversations on her website. She was charged
       with three counts of eavesdropping (720 ILCS 5/14-2(a)(1) (West 2008)), and three counts of
       using or divulging information obtained through the use of an eavesdropping device (720 ILCS
       5/14-2(a)(3) (West 2008)).
¶8         In a motion to dismiss, she stipulated that she recorded the conversations and posted them
       on her website, but claimed her conduct was permitted under an exception to the statute.
       Specifically, she claimed she was allowed to record a conversation “under reasonable
       suspicion that another party to the conversation is committing, is about to commit, or has
       committed a criminal offense against the person *** and there is reason to believe that
       evidence of the criminal offense may be obtained by the recording.” 720 ILCS 5/14-3(i) (West
       2008).
¶9         The State argued that the exception did not apply in this case because the court reporter
       whom defendant accused of creating a forged transcript was not a party to the recorded
       conversations. Thus, the State asserted, defendant should not be allowed to claim that the

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       exception of section 14-3(i) applied to her recordings of Taylor. The trial court granted the
       State’s motion in limine to preclude defendant from raising this defense at trial.
¶ 10        In her motion to reconsider, defendant argued that Taylor was a party to a criminal
       conspiracy and, thus, the statutory exception should be available to her at trial. The trial court
       denied her motion to reconsider.
¶ 11        Defendant then filed a motion to dismiss on the basis that the eavesdropping statute is
       unconstitutional under the due process clauses of both the Illinois and United States
       Constitutions because there is “no rational relationship between requiring two party consent
       and a legitimate state interest.” Two days later, this motion was argued and denied.
¶ 12        The matter proceeded to trial. The jury was unable to reach a unanimous verdict, and the
       court declared a mistrial. The matter was assigned to a second judge.
¶ 13        Thereafter, defendant filed a pro se motion to declare the statute unconstitutional, raising
       first amendment and due process claims. The State filed a response arguing that the statute
       does not violate either the first amendment or due process and that it is constitutional as applied
       to defendant.
¶ 14        After a hearing on the motion, the court found the statute both facially unconstitutional and
       unconstitutional as applied to defendant. The court’s subsequent written order stated that “the
       statute appears to be vague, restrictive and makes innocent conduct subject to prosecution.”
       Further, the court observed, the statute “lacks a culpable mental state, subjects wholly innocent
       conduct to prosecution, and violates substantive due process” under both the United States and
       Illinois Constitutions. In reaching this decision, the circuit court relied in part on American
       Civil Liberties Union v. Alvarez, 679 F.3d 583 (7th Cir. 2012) (finding that plaintiff had a
       strong likelihood of success in its first amendment claim that the Illinois eavesdropping statute
       was unconstitutional as applied to its plan to record police officers performing their duties in
       public places).

¶ 15                                           ANALYSIS
¶ 16      Section 14-2 of the Criminal Code provides that:
                  “(a) A person commits eavesdropping when he:
                      (1) Knowingly and intentionally uses an eavesdropping device for the purpose
                  of hearing or recording all or any part of any conversation or intercepts, retains, or
                  transcribes electronic communication unless he does so (A) with the consent of all
                  of the parties to such conversation or electronic communication or (B) in
                  accordance with Article 108A or Article 108B of the ‘Code of Criminal Procedure
                  of 1963’, approved August 14, 1963, as amended; or
                      ***
                      (3) Uses or divulges, except as authorized by this Article or by Article 108A or
                  108B of the ‘Code of Criminal Procedure of 1963’, approved August 14, 1963, as
                  amended, any information which he knows or reasonably should know was
                  obtained through the use of an eavesdropping device.” 720 ILCS 5/14-2 (West
                  2008).
¶ 17      As appellant, the State argues in its opening brief that the statute does not violate due
       process on its face because it does contain a culpable mental state requiring both knowledge

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       and intent. The State further argues that the statute is not unconstitutional as applied to
       defendant because she admits having recorded and divulged the contents of the conversations
       knowingly and intentionally. The State’s opening brief does not address defendant’s first
       amendment claim, stating that although the circuit court cited extensively to Alvarez, a first
       amendment case, the court “relied exclusively on the substantive due process clause” in
       reaching its conclusion.
¶ 18        Defendant frames four issues. She argues that section 14-2(a)(1), the “recording
       provision,” is unconstitutional on both first amendment and due process grounds; similarly,
       she argues that section 14-2(a)(3), the “publishing provision,” also violates the first
       amendment and due process. In the alternative, she argues that if the statute is not found
       unconstitutional on its face, it is nevertheless unconstitutional as applied to her recording of a
       public official who was acting in her official capacity when she engaged in the recorded
       conversation.
¶ 19        The State responds to the first amendment arguments in its reply brief, arguing that the
       statute is a content-neutral restriction on the time, place, and manner of the exercise of first
       amendment rights and that it is narrowly tailored. However, the State reiterates its position that
       no first amendment issue is at stake.
¶ 20        The constitutionality of a statute is a question of law that we review de novo. People v.
       Madrigal, 241 Ill. 2d 463, 466 (2011). We presume that a statute is constitutional and, thus, the
       party challenging its constitutionality bears a burden of clearly establishing that the statute
       violates the constitution. People v. Kitch, 239 Ill. 2d 452, 466 (2011). In addition, if it is
       reasonably possible to construe the challenged statute in a manner that preserves its
       constitutionality, we have a duty to do so. People v. Hollins, 2012 IL 112754, ¶ 13.
¶ 21        As an initial matter, we reject the State’s suggestion that the trial court’s ruling in the
       present case was based entirely on due process. The defendant’s motion raised a first
       amendment challenge. The trial court gave careful consideration and significant weight to the
       Seventh Circuit’s opinion in Alvarez, a first amendment case. Finally, in its written order, the
       trial court specifically described the statute as “vague” and noted that it subjects innocent
       conduct to prosecution; in effect, the court found the statute to be overbroad. While vagueness
       and overbreadth may be considered in a due process challenge, they are also properly applied
       in the first amendment context. See, e.g., People v. Sharpe, 216 Ill. 2d 481, 527 (2005) (if first
       amendment rights are not at stake in a vagueness challenge, “due process is satisfied if: (1) the
       statute’s prohibitions are sufficiently definite, when measured by common understanding and
       practices, to give a person of ordinary intelligence fair warning as to what conduct is
       prohibited, and (2) the statute provides sufficiently definite standards for law enforcement
       officers and triers of fact that its application does not depend merely on their private
       conceptions” (internal quotation marks omitted)); City of Chicago v. Pooh Bah Enterprises,
       Inc., 224 Ill. 2d 390, 442 (2006) (“[W]hen a law threatens to inhibit the exercise of
       constitutionally protected rights such as those protected under the first amendment, the
       Constitution demands that a more stringent vagueness test be applied. In such a scenario, a
       statute is void for vagueness if it reaches a substantial amount of constitutionally protected
       conduct.”).
¶ 22        Although the trial court did not specifically invoke the first amendment, it stated that it was
       relying on the Seventh Circuit’s analysis in Alvarez. In addition, the court’s findings of

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       vagueness and overbreadth are consistent with both first amendment and due process grounds.
       We find that the first amendment issue is sufficiently implicated by the circuit court’s ruling to
       permit consideration of defendant’s first amendment argument here.
¶ 23        The State also argues that defendant should be barred from raising a constitutional
       challenge to the statute because her constitutional claims are inconsistent with her defense at
       trial. At trial, she admitted that she made the recordings but argued she was permitted to do so
       by the statutory exception permitting an individual to record a conversation “under reasonable
       suspicion that another party to the conversation is committing, is about to commit, or has
       committed a criminal offense against the person *** and there is reason to believe that
       evidence of the criminal offense may be obtained by the recording.” 720 ILCS 5/14-3(i) (West
       2008). The State asserts that because defendant admits that she made the recordings and that
       she was aware at the time that her conduct was a crime if not justified by the statutory
       exception, she cannot now claim that the statute is vague or overbroad.
¶ 24        Defendant raised a due process challenge before the mistrial, and she raised both due
       process and first amendment challenges after the mistrial. The State does not explain why a
       criminal defendant may not argue in the alternative that the statute under which she was
       charged is unconstitutional and, failing that, that an exception to the statute excused her
       conduct. In any event:
                “Overbreadth is a judicially created doctrine which recognizes an exception to the
                established principle that a person to whom a statute may constitutionally be applied
                will not be heard to challenge that statute on the ground that it may conceivably be
                applied unconstitutionally to others, in other situations not before the court. Under the
                doctrine, a party being prosecuted for speech or expressive conduct may challenge the
                law on its face if it reaches protected expression, even when that person’s own
                activities are not protected by the first amendment. The reason for this special rule in
                first amendment cases is apparent: an overbroad statute might serve to chill protected
                speech. A person contemplating protected activity might be deterred by the fear of
                prosecution. The doctrine reflects the conclusion that the possible harm to society in
                permitting some unprotected speech to go unpunished is outweighed by the possibility
                that protected speech of others may be muted.” Pooh Bah, 224 Ill. 2d at 435-36.
¶ 25        Thus, we find it appropriate to reach the merits of defendant’s first amendment claim.
¶ 26        On the same day that oral arguments were heard in the present case, the court heard
       arguments in the case of People v. Clark, 2014 IL 115776. Although the cases were not
       consolidated, they involved similar issues, including a first amendment challenge to section
       14-2(a)(1) of the eavesdropping statute, which defendant describes as the “recording
       provision.” Our analysis in the present case is guided by our holding in Clark.
¶ 27        Defendant suggests that the statute is subject to intermediate scrutiny; the State does not
       specifically address the constitutional standard, but does assert that the statute is
       content-neutral, which invites intermediate scrutiny. Holder v. Humanitarian Law Project, 561
       U.S. 1, ___, 130 S. Ct. 2705, 2723 (2010). A content-neutral regulation will be sustained under
       the first amendment if it advances important governmental interests unrelated to the
       suppression of free speech and does not substantially burden more speech than necessary to
       further those interests. Turner Broadcasting System, Inc. v. Federal Communications Comm’n,
       520 U.S. 180, 189 (1997); United States v. O’Brien, 391 U.S. 367, 376-77 (1968).
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¶ 28       The State and defendant agree that the purpose of the eavesdropping statute is to protect
       conversational privacy. However, the statute as now written deems all conversations to be
       private and, thus, not subject to recording absent consent, even if the participants have no
       expectation of privacy. The State argues that the choice between a law that might be
       over-inclusive and one that might be under-inclusive is a policy matter for the legislature, not
       the courts.
¶ 29       When that policy criminalizes a wide range of innocent conduct, however, it cannot be
       sustained. The statute criminalizes the recording of conversations that cannot be deemed
       private: a loud argument on the street, a political debate on a college quad, yelling fans at an
       athletic event, or any conversation loud enough that the speakers should expect to be heard by
       others. None of these examples implicate privacy interests, yet the statute makes it a felony to
       audio record each one. Judged in terms of the legislative purpose of protecting conversational
       privacy, the statute’s scope is simply too broad. Clark, 2014 IL 115776, ¶¶ 22-23.
¶ 30       Further, even when the recorded conversation is held in private, the statute does not
       distinguish between open and surreptitious recording. The statute prohibits any recording of a
       conversation absent the consent of all parties. Thus, rather than knowing that he or she can
       proceed legally by openly recording a conversation so that all parties are aware of the presence
       of an operating recording device, the individual must risk being charged with a violation of the
       statute and hope that the trier of fact will find implied consent. See People v. Ceja, 204 Ill. 2d
       332, 349-50 (2003) (holding that consent under the eavesdropping statute may be express or
       implied; implied consent is consent in fact, inferred from the surrounding circumstances that
       indicate the individual knowingly agreed to the recording). Clark, 2014 IL 115776, ¶ 22.
¶ 31       We conclude as we did in Clark, 2014 IL 115776, that the recording provision of the
       eavesdropping statute (720 ILCS 5/14-2(a)(1) (West 2008)), burdens substantially more
       speech than is necessary to serve a legitimate state interest in protecting conversational
       privacy. Thus, it does not survive intermediate scrutiny. We hold that the recording provision
       is unconstitutional on its face because a substantial number of its applications violate the first
       amendment. See United States v. Stevens, 559 U.S. 460, 473 (2010) (a statute may be
       invalidated as overbroad if a substantial number of its applications are unconstitutional when
       judged in relation to the statute’s legitimate sweep).
¶ 32       Defendant raises an additional claim that is not present in Clark. She argues that what she
       describes as the “publishing provision” of the statute (720 ILCS 5/14-2(a)(3) (West 2008)), is
       also unconstitutional. The plain language of this provision criminalizes the publication of any
       recording made on a cellphone or other such device, regardless of consent. This alone would
       seem to be sufficient to invalidate the provision.
¶ 33       The State defends the provision in its brief by noting that Illinois Pattern Jury Instructions
       on this offense “read in” a requirement that the recording being divulged have been obtained in
       violation of the recording provision of section 14-2(a)(1). See Illinois Pattern Jury Instructions,
       Criminal, 12.03X (4th ed. 2000). Further, the State argues that defendant is not prohibited from
       making public the content of the conversation she recorded, she is merely prohibited from
       “preserving the speech of the other person in the precise manner that she would prefer,” i.e., a
       recording.
¶ 34       At oral argument, however, the State conceded that if the recording provision is found
       unconstitutional, the publishing provision must also fail, in light of the Supreme Court’s
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       decision in Bartnicki v. Vopper, 532 U.S. 514 (2001). In Bartnicki, the Court considered the
       constitutionality of state and federal statutes prohibiting the intentional disclosure of illegally
       intercepted communications that the disclosing party knew or should have known were
       illegally obtained. The Court observed that the “naked prohibition against disclosures” in the
       challenged statutes was “fairly characterized as a regulation of pure speech” by an innocent
       party. Id. at 526. The Court held that under the first amendment, the state may not bar the
       disclosure of information regarding a matter of public importance when the information was
       illegally intercepted by another party who provided it to the disclosing party. Id. at 535.
¶ 35       Because we have held that the statutory provision criminalizing defendant’s recording of
       the three conversations is unconstitutional on its face, she is in the position of an innocent party
       who is subject to a “naked prohibition against disclosure.” It matters not whether the contents
       of the recorded conversations were a matter of public interest because, unlike in Bartnicki, the
       recordings cannot be characterized as illegally obtained.
¶ 36       We hold that defendant cannot be constitutionally prosecuted for divulging the contents of
       the conversations she recorded, just as the media defendants in Bartnicki could not be
       prosecuted for disclosing recorded communications. We, therefore, find the publishing
       provision to be overbroad as well.

¶ 37                                       CONCLUSION
¶ 38      For the foregoing reasons, we affirm the judgment of the circuit court.

¶ 39      Circuit court judgment affirmed.




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