                                       2014 IL 115776



                                 IN THE
                            SUPREME COURT
                                   OF
                          THE STATE OF ILLINOIS



                                    (Docket No. 115776)

        THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. DEFOREST
                            CLARK, 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, DeForest Clark, was indicted by a grand jury in Kane County on two
     counts of eavesdropping (720 ILCS 5/14-2(a)(1)(A) (West 2010)). Count 1 alleged that
     defendant used an eavesdropping device to record a conversation between himself and
     attorney Colleen Thomas without her consent. Count 2 alleged that defendant had used
     an eavesdropping device to record a conversation between himself, Judge Robert
     Janes, and Colleen Thomas while Judge Janes was acting in the performance of his
     official duties, without the consent of Judge Janes or Colleen Thomas. Defendant filed
     a motion to dismiss the indictment on grounds that the eavesdropping statute violates
     substantive due process and his rights under the first amendment to the United States
     constitution. The circuit court of Kane County granted the motion, holding that the
     eavesdropping statute is unconstitutional on substantive due process and first
     amendment grounds. We allowed the Illinois State’s Attorneys Association and the
     American Civil Liberties Union of Illinois to file briefs amicus curiae pursuant to
     Supreme Court Rule 345. Ill. S. Ct. R. 345 (eff. Sept. 20, 2010). Appeal lies directly to
     this court under our Rule 603. Ill. S. Ct. R. 603 (eff. July 1, 1971). For the following
     reasons, we affirm the judgment of the circuit court.



¶2                                     BACKGROUND

¶3        Defendant filed a motion to dismiss the indictment. He first argued that the statute
     violates substantive due process because the elements of the offense do not require
     criminal intent, thus subjecting wholly innocent conduct to criminal penalty. Secondly,
     defendant argued that the statute violates his rights under the first amendment to the
     United States constitution (U.S. Const., amend. I) and under article I, section 2 of the
     Illinois constitution (Ill. Const. 1970, art. I, § 2). Defendant stated that he was in court
     on a child support matter and attorney Thomas was representing the opposing party.
     According to defendant, there was no court reporter present nor was there any
     recording device to record the proceedings. He alleged that the recordings he made
     were to preserve the record of his case. He claimed he had a first amendment right to
     gather information by recording public officials performing their public duties.

¶4        The State filed a response in which it argued that the statute does not violate
     substantive due process. According to the State, the purpose of the law is to assure
     Illinois citizens that their conversations would not be recorded by another person
     without their consent. Thus, the surreptitious recording of a conversation is the very
     activity the statute seeks to punish and the prohibition of such recording bears a
     reasonable relationship to the purpose of the statute. As to defendant’s first amendment
     claims, the State argued that there is no recognized first amendment right to secretly
     record a court proceeding.

¶5       In its written order, the circuit court found that the eavesdropping statute violates
     defendant’s right to substantive due process and his first amendment rights. The court
     found that the proper standard of review for defendant’s due process and first
     amendment claims is to determine whether the statute was narrowly tailored to serve a
     significant governmental interest. With respect to substantive due process, the circuit
     court found that the plain language and legislative history of the statute indicates that it
     is broadly designed to protect conversational privacy. The court noted that, despite the
     purpose of the statute, the legislature had removed from it any requirement that there be
     any expectation of privacy, thus subjecting any and all recordings of conversations to
     criminal liability. The circuit court found there is not a sufficient connection between
     the purpose of the statute and the expansive means adopted to achieve that end.
                                              -2-
¶6         The circuit court interpreted defendant’s first amendment challenge as an “as
       applied” challenge. As to the recording of courtroom proceedings, the circuit court
       noted that such proceedings are not typically private; thus, the privacy interests were
       insufficient to justify the statute’s expansive means. The circuit court recognized that
       the conversation with attorney Thomas in the hallway outside the courtroom required a
       more complicated analysis. The court noted that while Thomas likely expected that the
       conversation with defendant was private, the hallway of a courthouse is rarely a private
       place for a discussion. In light of the first amendment rights at issue, the court held that
       Thomas’ privacy interests did not rise to a level that would justify banning all audio
       recording.

¶7         The circuit court thus granted defendant’s motion to dismiss the indictment.



¶8                                          ANALYSIS

¶9          The constitutionality of a statute is a question of law that we review de novo.
       People v. Madrigal, 241 Ill. 2d 463, 466 (2011). There is a strong presumption that a
       statute is constitutional, and the party challenging its constitutionality bears the burden
       of clearly establishing that the statute violates the constitution. People v. Kitch, 239 Ill.
       2d 452, 466 (2011). This court has a duty to construe a statute in a manner that upholds
       its constitutionality, if reasonably possible. People v. Hollins, 2012 IL 112754, ¶ 13.



¶ 10                              First Amendment Overbreadth

¶ 11       We first address defendant’s argument that section (a)(1)(A) of the eavesdropping
       statute violates the first amendment under the overbreadth doctrine. In a typical facial
       challenge, defendant would have to establish that no set of circumstances exist under
       which the statute would be valid. United States v. Stevens, 559 U.S. 460, 472 (2010). In
       the first amendment context, however, a second type of facial challenge has been
       recognized, whereby a law may be invalidated as overbroad if a substantial number of
       its applications are unconstitutional, judged in relation to the statute’s plainly
       legitimate sweep. Id. at 473. The United States Supreme Court has provided this
       expansive remedy out of concern that the threat of enforcement of an overbroad law
       may deter or chill constitutionally protected speech, especially when the statute
       imposes criminal sanctions. Virginia v. Hicks, 539 U.S. 113, 119 (2003). A statute may
       be invalidated on overbreadth grounds only if the overbreadth is substantial. The
                                               -3-
       requirement that the overbreadth be substantial arose from the Supreme Court’s
       recognition that application of the overbreadth doctrine is strong medicine and that
       there must be a realistic danger that the statute “ ‘will significantly compromise
       recognized First Amendment protections of parties not before the Court.’ ” Board of
       Airport Commissioners v. Jews For Jesus, Inc., 482 U.S. 569, 574 (1987) (quoting City
       Council v. Taxpayers for Vincent, 466 U.S. 789, 801 (1984)).

¶ 12        Initially, the State argues that defendant has forfeited his overbreadth argument by
       failing to present that argument to the circuit court. Defendant counters with the
       principle that a statute may be challenged as unconstitutional at any time, even on
       appeal. The State acknowledges the principle but argues that it should not be applied
       here. According to the State, the rule is grounded in the notion that if a challenged
       statute is unconstitutional, it would be fundamentally unfair to uphold a conviction
       under it. Here, in contrast, defendant grounds his overbreadth challenge not on his own
       conduct, but on the rights of third parties.

¶ 13       We reject the State’s argument. The State has cited no case holding that a first
       amendment overbreadth challenge may not be heard for the first time on appeal in a
       criminal case on the ground that the defendant is seeking a finding of
       unconstitutionality based upon the statute’s effect on non-parties. Although the State
       implies that a different rule should apply to overbreadth challenges than applies to
       other constitutional issues, we decline the State’s invitation to create one. In any event,
       we are not bound by any forfeiture. See People v. McCarty, 223 Ill. 2d 109, 142 (2006).
       Therefore, we choose to address defendant’s overbreadth challenge. 1

¶ 14      The first step in an overbreadth analysis is to construe the challenged statute. It is
       impossible to determine whether a statute reaches too far without first knowing what
       the statute covers. United States v. Williams, 553 U.S. 285, 293 (2008). The
       eavesdropping statute provides in pertinent part:

                     “(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

           1
             We note that the State has chosen not to argue the merits of defendant's overbreadth challenge in
       this case despite having the opportunity to do so in its reply brief. It argues only that defendant forfeited
       his overbreadth argument.

                                                        -4-
                  so (A) with the consent of all of the parties to such conversation or
                  electronic communication ***[.]” 720 ILCS 5/14-2(a)(1)(A) (West 2010).

       The statute defines “[c]onversation” as “any oral communication between 2 or more
       persons regardless of whether one or more of the parties intended their communication
       to be of a private nature under circumstances justifying that expectation.” 720 ILCS
       5/14-1(d) (West 2010).

¶ 15       In People v. Beardsley, 115 Ill. 2d 47 (1986), the defendant was convicted of
       eavesdropping for recording a conversation with a police officer after he was stopped
       for speeding. In this court, the defendant argued that he was improperly convicted
       because the conversation he recorded was not private or secret, as he was a party to it.
       He argued that under the common meaning of “eavesdropping,” the conversation must
       have been intended to be private for the statute to apply. This court agreed with the
       defendant and held that the statute was based on the assumption that if parties to a
       conversation act under circumstances which entitle them to believe their conversation
       is private and cannot be heard by others who are acting in a lawful manner, then they
       should be protected in their privacy. This court found that the statute was intended to
       protect individuals from the surreptitious monitoring of their conversations by
       eavesdropping devices. Id. at 53.

¶ 16       This court reaffirmed its Beardsley holding in People v. Herrington, 163 Ill. 2d 507
       (1994). There, the alleged victim participated in a telephone conversation with the
       defendant which was recorded by the police. The trial court suppressed the tape
       recording as a violation of the eavesdropping statute. This court reversed, noting that
       there could be no expectation of privacy where the person recording the conversation is
       a party to that conversation: “ ‘[N]o eavesdropping occurs where an individual to
       whom statements are made or directed records them, even without the knowledge or
       consent of the person making the statements, because the declarant does not intend to
       keep his statements private vis-a-vis that individual.’ ” Id. at 510-11 (quoting Bender v.
       Board of Fire & Police Commissioners, 183 Ill. App. 3d 562, 565 (1989)).

¶ 17       The legislature amended the eavesdropping statute in 1994. Pub. Act 88-677, § 20
       (eff. Dec. 15, 1994). Prior to that time, the statute did not define “conversation.” The
       purpose of the 1994 amendments was to make clear, in contrast to Beardsley’s
       interpretation, that the consent of all parties to recording a conversation is required,
       regardless of whether the parties intended their conversation to be private. See 88th Ill.
       Gen. Assem., Senate Proceedings, Apr. 21, 1994, at 139 (statements of Senator

                                               -5-
       Dillard). The statute now criminalizes recording of all conversations except in limited
       circumstances specifically allowed by the statute. Thus, the scope of the eavesdropping
       statute is quite broad.

¶ 18       Audio and audiovisual recordings are medias of expression commonly used for the
       preservation and dissemination of information and ideas and thus are included within
       the free speech and free press guarantees of the first and fourteenth amendments.
       American Civil Liberties Union v. Alvarez, 679 F.3d 583, 595 (7th Cir. 2012). The act
       of making such a recording is necessarily included in the first amendment’s guarantee
       of speech and press rights as a corollary of the right to disseminate the resulting
       recording. Id. “[T]he eavesdropping statute operates at the front end of the speech
       process by restricting the use of a common, indeed ubiquitous, instrument of
       communication. Restricting the use of an audio or audiovisual recording device
       suppresses speech just as effectively as restricting the dissemination of the resulting
       recording.” Id. at 596.

¶ 19        The eavesdropping statute is content-neutral. It regulates speech without
       discrimination as to the messenger or the content of the message. See Ward v. Rock
       Against Racism, 491 U.S. 781, 791 (1989) (“Government regulation of expressive
       activity is content neutral so long as it is justified without reference to the content of the
       regulated speech.” (Emphasis and internal quotation marks omitted.)). As such, it is
       subject to 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 burden substantially 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).

¶ 20        We next consider the nature of the governmental interest the eavesdropping statute
       is intended to advance. In Beardsley, this court interpreted the purpose of the statute as
       protecting individuals from the surreptitious monitoring of their conversations by the
       use of eavesdropping devices. The court noted that the statute was based on the
       assumption that “if the parties to a conversation act under circumstances which entitle
       them to believe that the conversation is private and cannot be heard by others who are
       acting in a lawful manner, then they should be protected in their privacy.” Beardsley,
       115 Ill. 2d at 53. Thus, consent of all parties to a conversation to the recording of that
       conversation was not required in instances where any party lacked an intent to keep the
                                                 -6-
       conversation private. The legislature sought to change that in the 1994 amendments by
       making clear that no recording could be made absent consent from all parties regardless
       of any lack of expectation of privacy. Thus, the statute now essentially deems all
       conversations to be private and not subject to recording even if the participants
       themselves have no expectation of privacy. The State and defendant agree that the
       purpose of the eavesdropping statute is to protect conversational privacy. Specifically,
       the State argues that, faced with the serious and ever-increasing threat to conversational
       privacy posed by the widespread availability of mobile recording devices, the
       legislature opted for a solution that may be over-inclusive. However, the State
       contends, the alternative was to risk being under-inclusive by leaving unprotected from
       non-consensual recording a substantial universe of conversations that the parties in fact
       intended to be private. The State argues that this is a policy decision best left to the
       legislature. The question before this court is whether the means the legislature has
       chosen to further this interest in conversational privacy places a substantially greater
       burden on speech than is necessary to further the interest.

¶ 21       Individuals have a valid interest in the privacy of their communications and a
       legitimate expectation that their private conversations will not be recorded by those not
       privy to the conversation. In addition, the fear of having private conversations exposed
       to the public may have a chilling effect on private speech. Bartnicki v. Vopper, 532
       U.S. 514, 532-33 (2001). The eavesdropping statute thus legitimately criminalizes
       audio recordings in these instances. The purpose of the statute to protect private
       conversations is thus served. However, the statute does not stop there. It criminalizes a
       whole range of conduct involving the audio recording of conversations that cannot be
       deemed in any way private. For example, the statute prohibits recording (1) a loud
       argument on the street; (2) a political debate in a park; (3) the public interactions of
       police officers with citizens (if done by a member of the general public); and (4) any
       other conversation loud enough to be overheard by others whether in a private or public
       setting. None of these examples implicate privacy interests, yet the statute makes it a
       felony to audio record each one. Although the statute does contain several exemptions
       from the general prohibition (720 ILCS 5/14-3 (West 2010)), none of the examples
       above would come within any of those exemptions. Given the expansion of the
       statute’s scope by the 1994 amendments, we are left with a general ban on audio
       recordings of any oral communication whatsoever, absent consent from all parties,
       except in limited circumstances that mostly apply to law enforcement authorities.

¶ 22       Audio recordings of truly private conversations are within the legitimate scope of
       the statute. The prohibition on those recordings serves the purpose of the statute to
                                              -7-
       protect conversational privacy. However, the statute’s blanket ban on audio recordings
       sweeps so broadly that it criminalizes a great deal of wholly innocent conduct, judged
       in relation to the statute’s purpose and its legitimate scope. It matters not whether the
       recording was made openly or surreptitiously. The statute prohibits the recording in the
       absence of consent of all parties. And, while the consent need not be express, any
       implied consent will become a factor only after an individual has been charged with a
       violation of the eavesdropping statute and raises implied consent in defense. See
       People v. Ceja, 204 Ill. 2d 332, 349-50 (2003) (consent under the eavesdropping statute
       may be express or implied, the latter being consent in fact, which is inferred from the
       surrounding circumstances indicating that the party knowingly agreed to the
       surveillance).

¶ 23       If another person overhears what we say, we cannot control to whom that person
       may repeat what we said. That person may write down what we say and publish it, and
       this is not a violation of the eavesdropping statute. Yet if that same person records our
       words with an audio recording device, even if it is not published in any way, a criminal
       act has been committed. The person taking notes may misquote us or misrepresent
       what we said, but an audio recording is the best evidence of our words. Yet, the
       eavesdropping statute bars it. Understandably, many people do not want their voices
       broadcast to others or on the Internet to be heard around the world. But, to a certain
       extent this is beyond our control, given the ubiquity of devices like smartphones, with
       their video and audio recording capabilities and the ability to post such recordings
       instantly to the Internet. Illinois’ privacy statute goes too far in its effort to protect
       individuals’ interest in the privacy of their communications. Indeed, by removing all
       semblance of privacy from the statute in the 1994 amendments, the legislature has
       “severed the link between the eavesdropping statute’s means and its end.” Alvarez, 679
       F.3d at 606. The statute therefore burdens substantially more speech than is necessary
       to serve the interests the statute may legitimately serve. Accordingly, the statute does
       not meet the requirements necessary to satisfy intermediate scrutiny. We hold that
       section (a)(1)(A) of the eavesdropping statute is overbroad because a substantial
       number of its applications are unconstitutional, judged in relation to the statute’s
       plainly legitimate sweep. Given our holding, it is unnecessary to address the parties’
       other contentions.




                                               -8-
¶ 24                                    CONCLUSION

¶ 25       We hold that section (a)(1)(A) of the eavesdropping statute is unconstitutional as
       violative of the overbreadth doctrine under the first amendment to the United States
       constitution. Accordingly, we affirm the judgment of the circuit court.



¶ 26      Circuit court judgment affirmed.




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