                                     2014 IL 114852



                                IN THE
                           SUPREME COURT
                                  OF
                         THE STATE OF ILLINOIS



                                   (Docket No. 114852)

         THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. ANNABEL
                            MELONGO, Appellee.


                              Opinion filed March 20, 2014.



        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 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.

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¶ 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


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                   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 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


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       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 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
                                                -5-
       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
                                                -6-
       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).

¶ 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

                                               -7-
       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 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


                                                -8-
       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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