melongo's eavesdropping appeal brief at the illinois supreme court

8/13/2019 MELONGO'S EAVESDROPPING APPEAL BRIEF AT THE ILLINOIS SUPREME COURT

1/60

NO. 114852

IN THESUPRE:ME COURT OF ILLINOIS

PEOPLE OF THE STATEOF ILLINOIS,

Plaintiff-Appellant,

v s

ANNABEL MELONGO,

Defendant-Appellee.)

Appeal from the

Circuit Court of Cook County,Criminal Division

No. 10 CR 8092

The Hon. Steven J. GoebelJudge Presiding

RIEF OF DEFENDANT APPELLEEANNABEL :MELONGO

ORAL ARGUMENT REQUESTED

Gabriel Bankier PlotkinDaniel M FeeneyAlexandra K BlockMILLER SH KM N BEEM LLP Firm No 90236180 N. LaSalle StreetSuite 3600Chicago, IL 60601Tel: 312.263 .3700

FILED

E - 2 3

SUPREME C O URTLERK

December 6, 2013


2/60

TABLE OF CONTENTS AND AUTHORITIES

NATURE OF THE CASE 1

ISSUES PRESENTED FOR REVIEW 2

STANDARD OF REVIEW 2

People u Madrigal241 Il l .2 d 4G3 2011) . . . . . . 2

JURISDICTION 2

STATUTE INVOLVED 2

720 ILCS 5/ 14 . .

. . .

.

. . .

2

720 ILCS 5/14-2 a) 1) . . . . . . 2

720 ILCS 5/ 14-1 d) . . . . . . . . . . . . . . . . 3

720 ILCS 5/ 14-1 a) . . . . . 3

720 ILCS 5/14-2 a) 3) . . . . 3

STATEMENT OF FACTS 3

720 ILCS 5/14-3 i) . . . . . . . . . 6

A m er ican Civil Libert ies Union v lv re z679 F.3d 583 7th Cir. 2012) . . . . . . . . . . . . . . . . . . 6 7

AR GUMENT . 8

I The Eavesdropping Sta tu te is Unconst i tut ional Underthe First Amendment and Article I, Section 4of the Illinois Const i tu t ion . 10

U.S. Const. Amend. I . . . . 10

Ill. Const. Art. I 4 . . . . . . 10


3/60

City of Chicago v. Holland 206 Ill.2d 480 2003) . . . . . . . 11

A. The Recording and Publ ish ing Provisions ofthe Eavesdroppi n gSta tu te Burden Const i tu t iona l ly -Pro tec ted Express ion 11

Snyder v. Phelps_U. S . _ , 131 S. Ct. 1207 2011) . . . . . . . . . . . . . 11

Ill . Const . Art. 1 4 . 12

People v . DiGuida,152 Ill. 2d 104 1992) . . . . . . 12

City of Chicago v. Pooh Bah Enterprises Inc.

224 Ill. 2d 390 Ill. 2006) . .

12

American Civil Liberties Union v. Alvarez,679 F.3d 583 (7th Cir. 2012) 12

Glil? v. CuniffeG55 F .3d 78 1 t Cir. 2011) . . 12 , 1 ~ 3 14

Bartnichi v. Vopper532 U.S. 514 2001) 13

Lulay v. Peoria Journal-Star, Inc.34 Ill. 2d 112 1966) 13

United States v. Wecht537 F.3d 222 3d Cir. 2008) . . . . . 14

B. The Eavesdropping Sta tu te is Subjectto In termedia te Scrut iny 14

Turner Broadcasting System., Inc. v. Federal Cornmunications Comm n,512 U.S . 622 1994) . . 14

American Civil Liberties Union v. Alvarez,679 F.3d 583 (7th Cir . 2012) . . . 14, 15

People ex rel. Ryan v. World Church of the Creator198 Ill. 2cll15 2001) . . . . . Hi 16


4/60

City of Chicago v Pooh Bah Enterprises Inc.,224 Ill. 2d 390 (2006) . . . . . . . . . . . . . 15

Watchtower Bible Tract Society of New Y o r l ~ ,Inc.L . Village of Stratton

536 U.S . 150 (2002) . . . . . . . . . . . . . . 15

C The Recording Provision Fails In termedia te Scru t iny 16

American Civil Liberties Union v Alvarez679 F.3d 583 7th Cir. 2012) . . . 16-18, 21

720 ILCS Ann. 5/14-1, Committee Comments- 1 ~ 6 1 ,a t 6 (West s Smith-Hurd 2003) . . . . . 1G

720 ILCS 5/14-1(d) . . . . 17

People v Nestrocl?-,316 Ill. App. 3d 1 (2d Dist. 2000) . . . . 17

720 ILCS 5/14-3(h) . . . . . . 18

Hushey v National Broadcasting Co .,

G32 F. Supp. 1282 (N .D Ill. 1986) . . 19State v. Flora ,

845 P. 2d 1345 Wash. App. 1992) . . . . . . . . . . . . 19

Seth F. Kreimer , Pervasive linage Capture and the First Amendment:ll1emory, Discourse, and the Right to Record ,

159 UNIV OF PENN L REV 335 (2011) . . . . . 20

Bartnicl?-i v Vopp er ,532 U .S. 514 (2001) . . . . . . . . 20

720 ILCS 5/14-36) . . . . . . . 201 The Recording Provision is Unconst i tu t ional as Applied to

Ms. Melongo 21

American Civil Liberties Union v Alvarez679 F.3d 583 7th Cir. 2012) . . . . . . . . . . 22-24

111


5/60

Hushe y v Na t iona l Broadcasting Co.,632 F. Supp. 1282 (N.D. m 1986) . . . . . . . . . 22

Glih v Cuniffe,655 F .3d 78 (1 t Cir. 2011) . . . . 23

In re ssociat ed Press,162 F.3d 503 7th Cir. 1998) . . . . . . 23

United States v Wells,789 F. Supp. 2d 1270 (N.D. Okla . 2011) . . . . . . 24

Conn. Gen. Stat 2-570d . 25

Cal. Penal Code 632 . 25

Wash . Rev. Code 9.73.030(i )(a) . . 25

Jes se H. Alderman, Police Privacy in the iPhone Era ?: The Needfor Safeguards in State Wiretapping Statutes to Preserv ethe Civilian s Right to Record Public Police ctivity ,

9 FrRST AlVlEND. 1 REV. 487 (2011) . . . . . . . 25

2 Independent of Ms Melongo s Con duct, the RecordingProvis ion is Facially Invalid Under theOverbreath Doctrine 26

United States v Stevens ,599 U.S. 460 (2010) . . . . . . . . . 2 G-2 8

People v Williams ,235 Ill. 2d 178 (2009) 2 i, 28

Free Speech Coalition, Inc.

v. ttorney Gene ral of the United States,677 F .3d 519 (3d Cir. 2012) . . 2 7, 28

720 ILCS 5/14-1(d) 28

D The Publishing Provision Fails Intermediate Scrutiny 29

72 0 ILCS 5/14-2(a)(3) . . . . . . . . . 30

lV


6/60

720 ILCS 5/14-l a) . . . . . . . . . . . . . 30

American Civil Liberties Union v AlvarezG79 F.3cl 583 7th Ci r . 2012) . . . . . . 30, 33

People ex rel . Ryan v World Church of the Creator198 Ill 2cl 115 2001) . . . . . . . . . . . . . . . 31

People v Davis.199 Ill. 2d 130 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

120 ILCS 5/14-2 a) 3) . . . . . . . . . 31

120 ILCS 5/14-3 . 31

IPI 12.03X , 12.04X. . . . . . . . . . . . . . . 32

People v Wright194 Ill. 2d 2000) . . . . . . . . . . 32

Public Act 76-1110 . . . . . . . . 32

In re K.C.186 Ill 2d 542 1999) . . . . . . . . 33

1 The Publishing Provision is Unconst i tut ionalas Applied to Ms Melongo 34

Farah v Esquire Magazine_ F.3d _ , No. 12-7055 , 2013 WL G169660D.C. Ci r . Nov. 26 , 2013) 34

United States v White610 F.3d 956 7th Cir. 2010) 34

2 Independent ofMs. Melongo s Conduct, the Publish i ngProvision is Facially Invalid 35

U. S . v Stevens559 U.S. 460, 473 2010) . . . . . 35

Smith v Daily Mail ~ t b l i s h i n gCo.433 U.S. 97 1979) . . . . . . . . . . . . . 35


7/60

Glih v Cuniffe 655 F.3d 78 1 st Cir. 2011) 35

II. The Eavesdropping Statute is Unconst i tut ional on itsFace under the Due Process Clause of the United Statesand Illinois Consti tutions 36

U.S. Canst. Amend. XIV . . 36

Ill. Canst. Art. I 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

People v Madrigal241 Ill.2d 463 2011) 3G, 37

People v Carpenter228 Ill.2d 250 2008) . . 37

A. The Recording Provision of the Eavesdropping StatuteStatute Fails the Rational Basis Test 37

1 The means adopted are not a reasonable methodof prevent ing the targeted conduct 37

People v Carpenter228 Ill.2d 250 2008) . . . . 37, 40 , 41

720 ILCS 5/14-2 a) 1) 38

Anterican Civil Liberti es Union v Alvarez679 F.3d 583 7th Cir. 2012) 38, 42

DeBoer v Village of Oah Parh90 F. Supp .2d 922 N. D. Ill. 1999) . . 38

Plochu

Board of Education. of FreeportSchool District. No. 145.396 Ill. App. 3d 960 2d Dist. 2009) . 39

People v Madrigal 241 Ill.2d 463 2011) . . . . . 3 ~ l 41

V l


8/60

In re K.Co186 Ill.2d 542 1D99) 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 39

People v Zaremba158 Illo2d 36 19Dt1) 0 0 0 0 0 0 0 0 0 0 0 0 0 39

People u. Wich

107 Ill.2d 62 1985) 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 39

People o Hollins2012 IL 112754 , at , [2 8 0 0 0 0 0 0 0 0 0 0 0 0 0 0 39

720 ILCS 5/16G-15 a) 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 41

People Vo Beardsley

115 Ill.2d 47, 52 198G) 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 42

People v Herrington163 Ill.2d 507 1994) . 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 42

2. The State s a rguments in suppor t of thestatu te fall short 43

U So u Salerno

481 us 739 1987)0 0 0 0 0 0 0 0 0 0 0 0 0 0

43

People u. W i c l ~

107 Ill. 2d 62 1985) . 0 0 0 0 0 0 0 0 0 0 0 0 0 43

People u Madrigal241 Ill.2d 463 2011) 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 43, 44, 45

People u Wright

194 Ill. 2d 1 2000) 0 0 0 0 0 0 0 0 0 0 0 0 0 0 43

P e ople o Zaremba158 Ill.2d 36 1994) 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 44

B. The Publ ish ing Provision of the EavesdroppingSta tu te also Fails the Rational Basis Test. . 4 7

III . CONCLUSION 49

Vll


9/60


10/60

2

ISSUES PRESENTED FOR REVIEW

1. Whether the Recording Provision of the Eavesdropping Statute

(Subsection 14-2(a)(1)) is unconstitutional under the First Amendmentto the United States Constitution and Article I, Section 4 of the IllinoisConstitution?

2. Whether the Publishing Provision of the Eavesdropping Statute(Subsection 14-2(a)(3)) is unconstitutional under the First Amendmentto the United States Constitution and Article I, Section 4 of the IllinoisConstitution?

3. Whether the Recording Provision of the Eavesdropping Statute(Subsection 14-2(a)(1)) is unconstitutional under the Due Process Clauseof the United States and Illinois Constitutions?

4. Whether the Publishing Provision of the Eavesdropping Statute(Subsection 14-2(a)(3)) is unconstitutional under the Due Process Clauseof the United States and Illinois Constitutions?

STANDARD OF REVIEW

The constitutionality of a statute is a question of law that is reviewed de

novo . People v. Madrigal , 241 Ill.2d 463, 466 (2011).

JURISDICTION

The States statement of jurisdiction is correct and complete.

STATUTE INVOLVED

The Eavesdropping Statute is set forth at 720 ILCS 5/14.

Under the Recording Provision of the Eavesdropping Statute, 720 ILCS

5/14-2(a)(1), a person commits the crime of eavesdropping when she:


11/60

3

Knowingly and intentionally uses an eavesdropping device for thepurpose of hearing or recording all or any part of any conversationor intercepts, retains, or transcribes electronic communicationunless he does so (A) with the consent of all of the parties to suchconversation or electronic communication or (B) in accordance

with [state wiretap laws].

A conversation is defined as follows:

For the purposes of this Article, the term conversation means anyoral communication between 2 or more persons regardless ofwhether one or more of the parties intended their communicationto be of a private nature under circumstances justifying thatexpectation. 720 ILCS 5/14-1(d).

An eavesdropping device is defined as follows:

An eavesdropping device is any device capable of being used tohear or record oral conversation or intercept, retain, or transcribeelectronic communications whether such conversation orelectronic communication is conducted in person, by telephone, orby any other means; Provided, however, that this definition shallnot include devices used for the restoration of the deaf or hard-of-hearing to normal or partial hearing. 720 ILCS 5/14-1(a).

Under the Publishing Provision of the Eavesdropping Statute, 720 ILCS

5/14-2(a)(3), a person commits the crime of eavesdropping when she:

Uses or divulges, except as authorized by this Article or [statewiretap laws], any information which he knows or reasonablyshould know was obtained through the use of an eavesdroppingdevice.

STATEMENT OF FACTS

Annabel Melongo is a defendant in a separate, unrelated criminal

computer tampering case. C30-32. An arraignment on those charges was set

for June 18, 2008, but as reflected in the docket sheet, the judges half sheets,


12/60

4

and the court call sheet, Ms. Melongo was not present in court or arraigned on

that date. R. at Q-64, Q-107, Q-108-110.

In December 2009, while preparing her defense, Ms. Melongo ordered

and received an official court transcript dated June 18, 2008. R. at Q-18. The

court transcript indicated that Ms. Melongo was present and arraigned on that

date. R. at Q-15-17.

Ms. Melongo called Laurel Laudien, the official court reporter who

prepared the June 18 transcript, to ask her to correct the transcript to reflect

the fact that she was not present in court for an arraignment on that date. R.

at Q-14-25. Ms. Laudien refused, and when Ms. Melongo persisted, Ms.

Laudien referred the matter to her supervisor, Pamela Taylor. R. at Q-28.

Ms. Taylor is a public official. R. at Q-37. She is an Official Court

Reporter employed by the State of Illinois as the Assistant Administrator of

the Criminal Division. Id . Her email address is at the domain

cookcountygov.com. C428. As an Official Court Reporter, she is regulated

by the state and required to follow official guidelines when creating transcripts

and supervising other court reporters. R. at Q-37.

Ms. Taylor called Ms. Melongo to explain the office policy. R. at Q-45.

In a voicemail message to Ms. Melongo, Ms. Taylor explained that it was the

policy of the office that any dispute over the accuracy of the transcript be

presented to the judge, and she invited Ms. Melongo to call her back with any

further questions. C421-25; R. at Q-44-45.


13/60

5

Ms. Melongo had three subsequent telephone conversations with Ms.

Taylor. C413-20; C422-26; C427-29. Each conversation concerned the

in accuracy of the June 18 transcript, Ms. Melongos request that the court

reporter correct the inaccuracy , Ms. Taylors statements that the court

reporters office would not make the requested correction, and Ms. Taylor s

explanation of the steps Ms. Melongo could take to request a court correction

of the transcript. Id . According to Ms. Taylor, she spoke on behalf of the

official court reporter office. C425.

Ms. Melongo recorded each of her three conversations with Ms. Taylor

and posted them to her website. C430-32. On her website, she posted

developments in the computer tampering case against her, which arose from

her prior employment as a computer technician for a well-connected not-for-

profit corporation that suffered a high-profile dissolution receiving substantial

press. See www.illinoiscorruption.net/computertampering/index.

The State indicted Ms. Melongo on six counts of violating the

Eavesdropping Statute for making these three recordings and posting them to

her website. C29-35. On April 13, 2010, the State arrested Ms. Melongo on

these new charges. C19. Ultimately, a very high bond was set and Ms.

Melongo, unable to pay, remained in custody. C127. She served more than 20

months in jail as a result of the eavesdropping charges. Id. ; C132.


14/60

6

Ms. Melongo moved to dismiss the eavesdropping case indictment as

unconstitutional on due process grounds. C77-78. On December 13, 2010,

Judge Mary Margaret Brosnahan denied the motion. C6; R. at N-17.

Ms. Melongo then proceeded to trial. R. at P-3. She stipulated that she

had recorded three conversations with Ms. Taylor and posted those recordings

to her website. C430-32. However, she asserted that her conduct fell under an

exception to the Eavesdropping Statute due to her reasonable suspicion that a

fraud had been committed by the Court Reporter s Office and that she might

obtain evidence of that crime by recording her conversation with Ms. Taylor.

See R. at Q-195; see also 720 ILCS 5/14-3(i). After two days of trial, the jury

was unable to reach a verdict and a mistrial was declared. R. at R-16-17. Her

case was reassigned to Judge Goebel. C10.

Ms. Melongo, then acting pro se , filed an Amended Motion To Declare

Statute Unconstitutional And To Dismiss. C172. In it, she argued that the

Eavesdropping Statute was unconstitutional facially and as applied to her

under the First Amendment and Due Process Clause. C.172-83.

Ms. Melongo argued the motion on March 19, 2012, and Judge Goebel

took the matter under advisement. R. at EEE-1-36. Two months later, on May

8, 2012, the Court of Appeals for the Seventh Circuit decided American Civil

Liberties Union of Illinois v. Alvarez , 679 F.3d 583 (7th Cir. 2012), enjoining

enforcement of the Eavesdropping Statute against plaintiffs who wished to

audio-record police officers performing their official duties in public places.


15/60

7

Alvarez held that the Illinois eavesdropping statute rest ricts an

expressive medium used for the preservation and dissemination of information

and ideas and therefore burdens individual speech and press rights protected

by the First Amendment. 679 F.3d at 608. Alvarez further held that the

statute would likely fail constitutional scrutiny because its broad prohibition

on recording all conversations, even those that are not private, was not

sufficiently tailored to serving the states interest in protecting conversational

privacy. Id. at 606-608.

On June 19, 2012, Judge Goebel heard additional argument in light of

Alvarez and declared that the Eavesdropping Statute was unconstitutional,

effectively granting Ms. Melongos motion. R. at QQQ-1-19. Judge Goebel

relied on the reasons set forth in Alvarez namely, that the statute, rather

than attempting to tailor the statutory prohibition to the important goal of

protecting personal privacy . . . has banned nearly all audio recording without

consent of the parties including audio recording that implicates no privacy

interests at all. R. at QQQ-12. He also adopted the opinion of Judge Stanley

Sacks in People v. Christopher Drew , No. 10 CR 00046. R. at QQQ-17.

On July 26, 2012, Judge Goebel entered a written order consistent with

Supreme Court Rule 18 declaring the Eavesdropping Statute unconstitutional.

C406-11. He held that the Eavesdropping Statute is facially unconstitutional

because it lacks a culpable mental state, subjects wholly innocent conduct to

prosecution, and violates substantive due process under the Fourteenth


16/60

8

Amendment to the United States Constitution (U.S. Const. Amend. XIV) and

Article I, Section 2 of the Illinois Constitution (Ill. Const. 1970, Art. I, Sec. 2).

C410. The order also relied on the First Amendment analysis in Alvarez ,

adopting its conclusion that the ACLU had a strong likelihood of success on

the merits of its First Amendment claim. Id.

ARGUMENT

The fundamental flaw in the Eavesdropping Statute is that it sweeps

far too broadly. The State attempts to justify the statute as a means to protect

private conversations from eavesdroppers, but the statute as written makes it

a crime to listen to or record without consent any and all conversations,

including conversations that are not private and that nobody could reasonably

expect to be private. While the legislature is free to address many problems

by legislating more broadly than necessary, it cannot do so when the conduct

regulated is protected activity under the First Amendment, or when the

legislation sweeps so far as to criminalize wholly innocent conduct. That is the

case here.

Audio recording and publishing information derived from such

recordings especially of public officials performing their public duties

constitutes protected speech under the First Amendment to the United States

Constitution and Article I, Sec. 4 of the Illinois Constitution. Consequently,

the Eavesdropping Statute can survive only if the State can prove that it is


17/60

9

narrowly drawn to serve an important public interest without burdening more

speech than necessary. The State cannot meet this heightened burden.

This Court can and should strike down the Eavesdropping Statute on

First Amendment grounds in this case. The conversations Ms. Melongo

recorded and then posted on her website were not private. They were

conversations she had as a member of the public with a public official acting in

her official capacity about a matter of public importance, and as such, could

not reasonably be considered private or the proper target of government

regulation. But even if this Court disagrees about the public nature of Ms.

Melongos conversations, under the First Amendments overbreadt h doctrine

Ms. Melongo has standing to assert the facial invalidity of the statute. And for

the reasons set forth below, the staggeringly broad sweep of the Recording and

Publishing Provisions of the Eavesdropping Statute renders them

unconstitutional on their face.

Additionally, and regardless of the effect the statute has on any First

Amendment rights, the Recording and Publishing Provisions of the

Eavesdropping Statute are unconstitutional under the Due Process Clause of

the United States and Illinois constitutions because they are not reasonable

methods of protecting conversational privacy. Both provisions punish people

who engage in wholly innocent conduct unrelated to eavesdropping on private

conversations and are therefore unconstitutional under clearly established

precedent.


18/60


19/60

11

In its brief, the State wholly ignores Ms. Melongos First Amendment

challenge to the Eavesdropping Statute. The State acknowledges that Ms.

Melongo raised a First Amendment argument before Judge Goebel but

dismisses it without discussion by asserting that the trial court . . . relied

exclusively on the substantive due process clause. States Br. at 11 n. 2. This

is false. The trial court relied heavily on the First Amendment analysis in

Alvarez . C406-11. But regardless, the reasoning of the trial court does not

preclude Ms. Melongo from asserting her First Amendment challenge here.

This Court can sustain the decision of the Circuit Court on any grounds which

are called for by the record regardless of whether the Circuit Court relied on

the grounds and r egardless of whether the circuit courts reasoning was

sound. City of Chicago v. Holland , 206 Ill. 2d 480, 492 (2003).

A. The Recording and Publishing Provisions of the EavesdroppingStatute Burden Constitutionally-Protected Expression

The First Amendment protects the fundamental right to free expression,

particularly on matters involving government conduct: The First Amendment

reflects a profound national commitment to the principle that debate on public

issues should be uninhibited, robust, and wide- open. Snyder v. Phelps , __U.S.

__, 131 S. Ct. 1207, 1215 (2011) (internal citations and quotation marks

omitted). The Illinois Constitution protects freedom of speech and of the press

at least to the same extent as the United States Constitution. See Ill. Const.

Art. I, 4; People v. DiGuida , 152 Ill. 2d 104, 121 (1992). In First Amendment

cases, this Court looks to federal precedent in addition to its own prior


20/60

12

decisions. City of Chicago v. Pooh Bah Enterprises, Inc. , 224 Ill. 2d 390, 419

(Ill. 2006).

The First Amendment generally protects audio recording. Audio and

visual recording are media of expression used to preserve and disseminate

information and ideas and therefore are included within the free speech and

free press guar anty of the First and Fourteenth Amendments. Alvarez , 679

F.3d at 595 (quoting Burstyn v. Wilson , 343 U.S. 495, 502 (1952)). The act of

making an audio or audiovisual recording is necessarily included within the

First Amendments guarantee, as the the right to publish or broadcast an

audio or audiovisual recording would be insecure, or largely ineffective, if the

antecedent act of making the recording is wholly unprotected. Alvarez , 679

F.3d at 595. Restricting the use of an audio or audiovisual rec ording device

suppresses speech just as effectively as restricting the dissemination of the

resulting recording. Id . at 596; see also Glik v. Cuniffe , 655 F.3d 78, 82-83

(1st Cir. 2011) (holding that a First Amendment right in the gathering and

dissemination of information includes a right to record government officials).

Accordingly, the audio recording prohibitions in the Recoding Provision

directly burden First Amendment rights. Alvarez , 679 F.3d at 600 (Any way

you look at it, the eavesdropping statute burdens speech and press rights .)

It is beyond dispute that the First Amendment also protects the use,

dissemination and publication of audio recordings and the information therein.

If the acts of disclosing and publishing information do not constitute speech,


21/60

13

it is hard to imagine what does fall within that category. Bartnicki v. Vopper ,

532 U.S. 514, 527 (2001) (internal quotation marks and citations omitted)

(broadcast of a surreptitiously-taped conversation between union negotiator

and union president, concerning public collective bargaining issues, protected

by First Amendment and could not be constitutionaly punished). By

criminalizing the use and dissemination of audio recordings, the Publishing

Provision of the Eavesdropping Statute therefore curtails First Amendment

activity.

First Amendment concerns are particularly acute where, as here, a

person records and publishes information about public officials acting in their

official capacities about public matters. Gathering information about

government officials in a form that can readily be disseminated to others serves

a cardinal First Amendment interest in protecting and promoting the free

discussion of governmental affairs. Glik , 655 F.3d at 82 (quoting Mills v.

Alabama , 384 U.S. 214, 218 (1966) and summarizing cases holding that the

First Amendment protects the recording of matters of public interest, including

statements made by public officials); see also Lulay v. Peoria Journal-Star,

Inc. , 34 Ill. 2d 112, 114 (1966) (The right to speak and print about actions

of government is well established; denial of this right would be a serious

infringement of both State and Federal constitutional guarantees of free

spe ech and press.).


22/60

14

Importantly, these First Amendment protections apply equally to

individuals and the news media. The First Amendment right to gather news

is, as the Court has often noted, not one that inures solely to the benefit of the

news media; ra ther, the publics right of access to information is coextensive

with that of the press. Glik , 655 F.3d at 83; see also United States v. Wecht ,

537 F.3d 222, 233-34 (3d Cir. 2008) (holding that the medias right to access

and gather information relating to judicial proceedings is no less important

than that of the general public. ) (citing Richmond Newspapers, Inc. v.

Virginia , 448 U.S. 555, 676-77 & n.12 (1980)).

B. The Eavesdropping Statute is Subject to Intermediate Scrutiny

Because the Eavesdropping Statute burdens conduct protected by the

First Amendment, it is subject to heightened scrutiny. The level of scrutiny a

Court must give to a statute that regulates speech depends on whether the

regulations are related to the content of the speech. See Turner Broadcasting

System, Inc. v. Federal Communications C ommn , 512 U.S. 622, 642 (1994).

Laws, such as the Eavesdropping Statute, that are unrelated to the content of

speech ( i.e. , content neutral) are subject to an intermediate level of scrutiny.

Alvarez , 679 F.3d at 603 (quoting Turner , 512 U.S. at 642).

Intermediate scrutiny requires the State to show that the statute serves

a substantial governmental interest and is narrowly drawn to serve that

interest without unnecessarily interfering with First Amendment freedoms.

People ex rel. Ryan v. World Church of the Creator , 198 Ill. 2d 115, 121 (2001)


23/60

15

(citation omitted). Put another way, a content-neutral regulation will be

upheld only if it restricts First Amendment freedoms no further than is

essential to further the government's interest. Pooh Bah , 224 Ill. 2d at 410-

11 (emphasis added) (adopting standard set forth in United States v. OBrien ,

391 U.S. 367, 376- 77 (1968)). This last requirement means that the burden

on First Amendment rights must not be greater than necessary to further the

impor tant governmental interest at stake. Alvarez , 679 F.3d at 605 (internal

citations omitted).

To pass constitutional muster, the recording and dissemination

restrictions in the Eavesdropping Statute must be no broader than necessary

to further th e States asserted public interest. And whereas the challenger

normally bears the burden of proving a law is unconstitutional, in a First

Amendment challenge, intermediate scrutiny shifts the burden to the State to

prov[e] the constitutionality of its actions wh en [it] restricts speech.

Watchtower Bible & Tract Society of New York, Inc. v. Village of Stratton , 536

U.S. 150, 170 (2002) (quoting United States v. Playboy Entertainment Group,

Inc. , 529 U.S. 803, 816 (2000)). Therefore, the State must show that the

Recording Provision and Publishing Provision are narrowly drawn to protect

a substantial governmental interest without unnecessarily interfering with

First Amendment freedoms. World Church of the Creator , 198 Ill. 2d at 121.

C. The Recording Provision Fails Intermediate Scrutiny.


24/60

16

The Recording Provision fails intermediate scrutiny because it burdens

First Amendment rights far more than necessary to serve the States purported

interest in protecting conversational privacy.

The State asserts that the purpose of the Eavesdropping Statute is to

protect private conversations from eavesdroppers. As the State says

repeatedly in its Brief, the public interest served by the Eavesdropping Statute

is protecting conversational privacy. See States Brief at 11 -12 (the statute

is rationally related to the legitimate and important public interest of

protecting conversational privacy ) (emphasis added) and at 24 (the statutes

broad reach was intended to further the public interest in prote cting

conversational privacy ) (emphasis added). The State maintained this same

position in Alvarez . 679 F.3d at 605 (The States Attorney defends the law as

necessary to pr otect conversational privacy.) . See also 720 ILCS Ann. 5/14-1,

Committee Comments 1961, at 6 (Wests Smith -Hurd 2003) ([T]he reason

for this legislation has, of course, been to protect the privacy of the individual

. . .).

The Recording Provision of the Eavesdropping Statute, however, has

little to do with privacy. The Eavesdropping Statute broadly prohibits the

recording of any and all conversations, regardless of whether they are

private. 720 ILCS 5/14-1(d). The statute makes it a crime to use an

eavesdropping device to hear or record a conversation without consent and

defines a conversation as any oral communication between 2 or more persons


25/60

17

regardless of whether one or more of the parties intended their communication

to be of a private nature under circumstances justifying that expectation. Id.

(emphasis added). That is, contrary to the States expressed purpose, the

Eavesdropping Statute expressly forbids the nonconsensual recording of

conversations that are not private and that nobody intends to be private. See

People v. Nestrock , 316 Ill. App. 3d 1, 7 (2d Dist. 2000) ( [B]y adding the

definition of conversation to the statute in 1994, the Illinois legislature

extended the coverage of the eavesdropping statute to all conversations,

regardless of whether they were intended to be private ) (quoting People v.

Siwek , 284 Ill. App. 3d 7, 14 (2d Dist. 1996)).

[B]y legislating this broadly by making it a crime to audio recordany conversation, even those that are not in fact private theState has severed the link between the eavesdropping statutesmeans and its end. Rather than attempting to tailor the statutoryprohibition to the important goal of protecting personal privacy,Illinois has banned nearly all audio recordings without consent of

the parties including audio recording that implicates no privacyinterests at all.

Alvarez , 679 F.3d at 606 (emphasis in original).

The State argues that by requiring consent before a conversation can be

recorded, the statute is properly tailored to protect conversational privacy.

State Br. at 13-14. But this is wrong. The State has not asserted that the

substantial governmental interest served by the Eavesdropping Statute is an

individual right to consent to recording (and cannot do so consistently with the

purpose and legislative history of the act). And privacy and consent are not

equivalent. If they were, any conversation recorded without consent would be


26/60

18

a private conversation. Yet under the statute, a conversation recorded

without consent by definition includes a conversation that none of the parties

intended to be of a private nature. And, practically speaking, there are many

public conversations for which it will be impossible or impractical to obtain

consent before recording, but that does not render them private.

Moreover, substituting consent for privacy gives public officials the

impermissible power to quash First Amendment rights by refusing consent

whenever they do not want citizens monitoring or recording their work even

in public and under circumstances not justifying an expectation of privacy. The

Eavesdropping Statute as written and applied insulates public officials

from scrutiny by citizens instead of protecting private citizens from

eavesdropping by others. For example, under Subsection 14-3(h), law

enforcement officers may use in-car video camera to record conversations they

have on the street with private citizens under almost any circumstance,

without notice or consent. See 720 ILCS 5/14-3(h) (attached at Melongo App.

At A-5). But the statute makes it a felony for a citizen to record those same

interactions. See Alvarez , 679 F.3d at 594.

In fact, every reported decision of a prosecution under the Eavesdropping

Statute that undersigned counsel has located involved citizens recording

government officials carrying out their official duties:

In People v. Allison , 09 CF 50, Cir. Court of 2d Cir., Crawford County,Melongo App. at A-11, an individual was prosecuted for recording policeofficers, court clerks and other public employees.


27/60


28/60

20

public servants in carrying out their duties are b y definition a matter of public

concern. Id. (citing Garcetti v. Ceballos , 547 U.S. 410, 421 (2006) (public

employees who make statements in the course of their official duties are not

speaking as citizens and are not entitled to First Amendment protections);

Bartnicki , 532 U.S. at 540 (Breyer, J., concurring) (observing that limited

public figures subject to surreptitious recording had diminished privacy

interest in their conversation on a matter of public concern)).

Clearly, the Recording Provision is not narrowly drawn to protect

conversational privacy without unnecessarily burdening First Amendment

rights. To the contrary, it is unconstitutionally broad and allows the State to

trample the First Amendment rights of private citizens in order to protect

public officials and police officers from scrutiny. 1

The disconnect between the Eavesdropping Statute and the purported

goal of conversational privacy is also apparent in the context of conversations

not involving public officials. For example, under the statute, it is a felony to

record a shouting match between two spectators at a baseball game, or an

exchange between a street performer and a heckler. In addition, any wedding

guest who records the exchange of vows between the bride and groom without

first getting their consent is subject to criminal sanction. No privacy interests

1 The Eavesdropping Statute also protects corporations at the expense ofconversational privacy. Under Subsection 14-3(j), telemarketers calling a privatecitizen to solicit him for business or to conduct opinion research can record those callswithout giving notice or seeking their consent. See 720 ILCS 5/14-3(j) (requiring onlythat the employees of the corporation be given notice) (attached at Melongo App. at A-6).


29/60

21

are served by prohibiting someone from engaging in the First Amendment-

activity of recording those conversations, because they are had in a public

setting and meant to be overheard. See Alvarez , 679 F.3d at 605 (citing

common law and Fourth Amendment conceptions of privacy). Yet the

Recording Provision does so. A s the Seventh Circuit rightly concluded, if

protecting privacy is the justification for this law, then the law must be more

closely tailored to serve that interest in order to avoid trampling on speech and

press rights. Id. at 608.

1. The Recording Provision is Unconstitutional as Applied to Ms.Melongo

The State concedes (as it must) that the Eavesdropping Statute is

broad. States Br. at 12. It also does not dispute the Seventh Circuits ruling

in Alvarez that the statute likely violates the First Amendment as applied to

people who record police officers performing their duties in public. Id. But in

addressi ng Judge Goebels due process ruling, the State argues that Ms.

Melongos case is distinguishable because she surreptitiously recorded a

telephone conversation. See id. at 10, 11, 13-14, 17, 21. This is wrong. There

is no constitutionally significant difference between recording police officers in

public and recording a public official acting in her official capacity conversing

with a member of the public over the telephone.

In Alvarez , the ACLU sought an injunction precluding prosecution

under the Eavesdropping Statute of private volunteer observers who intended

to record police officers performing their official duties in public, specifically at


30/60

22

protests and demonstrations. 679 F.3d at 588. The Seventh Circuit explained

that such communications, made by public officials performing their official

dutie s in public, lack any reasonable expectation of privacy. Id. at 605-06

(quoting Katz v. United States , 389 U.S. 347, 351 (1967)); see also id. at 613

(Police may have no right to privacy in carrying out official duties in public.)

(Posner, J., dissenting). On the other hand, the Seventh Circuit concluded that

plaintiffs First Amendment interests in recording those same public officials

were quite strong. Id. at 597.

The same is true here. Ms. Melongo recorded the statements of a public

official performing her official duties by conversing with a member of the

public. Like the police officers carrying out their duties in Alvarez , Ms. Taylor

has no legitimate interest in keeping private the statements she made to Ms.

Melongo on behalf of the official court reporter office regarding the offices

official policies. See Huskey 632 F. Supp. at 1290. And as was the case in

Alvarez , the public (including Ms. Melongo) has a substantial First

Amendment interest in the gathering and disseminating the information Ms.

Melongo recorded concerning governmental affairs. See Glik , 655 F.3d at 82

(Gathering information about government offi cials in a form that can readily

be disseminated to others serves a cardinal First Amendment interest in

protecting and promoting the free discussion of governmental affairs.); In re

Associated Press , 162 F.3d 503, 506 (7th Cir. 1998) (Public scrutiny over the

court system serves to (1) promote community respect for the rule of law, (2)


31/60

23

provide a check on the activities of judges and litigants, and (3) foster more

accurate fact finding.) (internal c itations and quotation marks omitted).

In short, neither the police officers in Alvarez nor the Assistant

Administrator of the Criminal Division here has any privacy interest in the

substance of their conversations, and on the other side of the equation, both

the volunteer observers in Alvarez and Ms. Melongo were engaged in

quintessential First Amendment conduct. Consequently, both recordings fall

outside of the Eavesdropping Statutes permissible reach.

Admittedly, there are differences between the facts here and the facts in

Alvarez . Specifically, Ms. Melongo did not record openly, and the

conversations at issue here occurred over the telephone. But these differences

are constitutionally insignificant.

The Seventh Circuit in Alvarez disavowed the States suggestion that

First Amendment protections are limited to open recordings. It wrote:

We are not suggesting that the First Amendment protects onlyopen recordings. The distinction between open and concealedrecording, however, may make a difference in the intermediate-scrutiny calculus because surreptitious recording brings strongerprivacy interests into play.

Alvarez , 679 F.3d at 607 n.13 (emphasis in original) (citing Bartnicki , 532 U.S.

at 529). And in the present case, the fact that the recording was not done

openly has no impact on the privacy interests or lack thereof of Ms. Taylor,

a government representative speaking about the official position of her office

to a member of the public. However recorded, the substance of Ms. Taylors


32/60


33/60

25

recording without consent a confidential communication made by telephone);

Wash. Rev. Code 9.73.030(1)(a) (criminalizing recording or intercepting any

private communication transmitted by telephone) . The Illinois

Eavesdropping Act is arguably the most draconian in the nation. Jesse H.

Alderman, Police Privacy in the iPhone Era?: The Need for Safeguards in State

Wiretapping Statutes to Preserve the Civilians Right to Record Public Police

Activity , 9 F IRST A MEND . L. REV . 487, 500, 533-38 (2011) (listing Illinois as one

of only three states barring the recording of non-private conversations, and the

only of those three prohibiting open as well as secret recordings).

2. Indepen dent of Ms. Melongos Conduct, t he Recording Provision is Facially Inavalid Under the Overbreadth Doctrine .

Even if this Court disagrees with the above authority and concludes that

Ms. Melongos conversations with Ms. Taylor were not public, she still may

challenge the Eavesdropping Statute under the overbreadth doctrine.

A statute that burdens First Amendment conduct may be invalidated on

its face if it substantially infringes constitutionally protected activity. United

States v. Stevens , 559 U.S. 460, 473 (2010); People v. Williams , 235 Ill. 2d 178,

199-200 (2009). Under the First Amendment overbreadth doctrine, this Court

need not determine that every application of the Eavesdropping Statute is

unconstitutional, or even that it would be unconstitutional to apply the statute


34/60

26

to Ms. Melongos conduct. Id . at 472-73; see also Stevens , 559 U.S. at 472-73

(rejecting the applicability of United States v. Salerno , 481 U.S. 739 (1987) to

facial overbreadth challenges brought under the First Amendment).

Under the First Amendment overbreadth doctrine, a party maybring a facial challenge against a statute, even though it is notunconstitutional as applied to that particular party, because thestatutes very existence may cause others not before the court torefrain from constitutionally protected speech or expression.

Free Speech Coalition, Inc. v. Attorney General of the United States , 677 F.3d

519, 537 (3d Cir. 2012) (quoting Broadrick v. Oklahoma , 413 U.S. 601, 612

(1973)). See also Williams , 235 Ill. 2d at 199-200 (observing that the

overbreadth doctrine arises from a concern that the constitutionally protected

activity may be deterred or chilled, thus depriving society of an uninhibited

marketplace of ideas) .

A statute will be found facially invalid under the First Amendment if a

substantial number of its applications are unconstitutional, judged in relation

to t he statutes plainly legitimate sweep. Stevens , 599 U.S. at 473 (quoting

Washington State Grange v. Washington State Republican Party , 552 U.S. 442,

449 n.6 (2008)); see also Free Speech Coalition , 677 F.3d at 538 (reinstating

facial overbreadth challenge to statute because it applied to substantially more

conduct than statutes purpose was intended to prevent).

For example, in Stevens , the United States Supreme Court struck down

on overbreadth grounds a statute outlawing the interstate sale of any

depictions of animal cruelty. 559 U.S. at 466. The defendant was prosecuted


35/60

27

for selling videos of dog fights and challenged the prosecution on the grounds

that the animal cruelty statute was facially invalid under the First

Amendment because a substantial amount of material subject to the statute

depicted ordinary and lawful activities. Id. at 473. The Supreme Court

agreed:

We read 48 to create a criminal prohibition of alarming breadth.To begin with, the text of the statutes ban on a depiction ofanimal cruelty nowhere requires that the depicted conduct becruel. That text applies to any depiction in which a livinganimal is intentionally maimed, mutilated, tortured, wounded, orkilled. 48(c)(1). [M]aimed, mutilated, [and] tortured conveycruelty, but wounded or killed do not suggest any suchlimitation.

Id. at 474.

The Recording Provision of the Eavesdropping Statute is analogous.

Although the States only legitimate purpose in enacting the statute could be

to protect conversational privacy, the statute nowhere requires that the

recordings subject to the statute contain private conversations. In fact, even

more troubling than the animal cruelty statute in Stevens , the Eavesdropping

Statute is not just silent on its scope it expressly extends its coverage to

conversations regardless of whether they are private . It is akin to an animal

cruelty statute that expressly banned all animal depictions regardless of

whether they depicted animal cruelty .

By criminalizing conduct falling well outside the legitimate sweep of

conversational privacy, the Eavesdropping Statute fails on its face. As

discussed above, the Recording Provision, by its very language, criminalizes


36/60


37/60

29

The Publishing Provision of the Eavesdropping Statute sweeps even

more broadly than the Recording Provision and therefore fails intermediate

scrutiny as well. The asserted government interest behind the Publishing

Provision is the same as that supporting the Recording Provision to protect

conversational privacy. And if that is truly the goal, the Publishing Provision

overshoots by miles.

The Publishing Provision makes it a crime if a person uses or divulges ,

except as authorized by this Article or [state wiretap laws], any information

which he knows or reasonably should know was obtained through the use of

an eavesdropping device. 720 ILCS 5/14 -2(a)(3). By its plain terms, there is

no requirement that the information be obtained illegally, by an eavesdropper,

or even without consent only that it was obtained through the use of an

eavesdropping device. A n eavesdropping device is defined as any device

capable of bei ng used to hear or record oral conversations, other than a

hearing aid. 720 ILCS 5/14-1(a). This includes countless devices used every

day for thousands of lawful purposes: a tape recorder, a video recorder, a smart

phone, or a laptop computer. There is no requirement that the information

obtained through an eavesdropping device be a conversation , let alone a private

conversation. And there is no affirmative defense permitting a person to use

or divulge recorded information if the parties to the recording have given

consent to do so.


38/60

30

The sweep of the Publishing Provision is staggering. It is a crime for a

newspaper reporter to write an article based on the substance of an interview

he conducted and consensually recorded. It is a crime for the ACLU to publish

a report of the information gathered by its videographers in the police

accountability program at issue in Alvarez . 679 F.3d 583. It is even a crime

for a person to forward a YouTube video to her friends (she has divulged

information she reasonably should have known was obtained by a device

capable of recording a conversation). There can be no dispute that all of these

examples are activities firmly protected by the First Amendment and that

there is no need to curtail any of them in order to protect conversational

privacy . To an even greater degree than the Recording Provision, this broad-

sweeping statute is not narrowly drawn to protect conversational privacy and

burdens far more expressive conduct than necessary to achieve that goal. See

World Church of the Creator , 198 Ill. 2d at 121.

In reply, the State may urge this Court to read the Publishing Provision

more narrowly, in light of statutory language protecting from prosecution a

person who uses or divulges such information as authorized by this Article .

See 720 ILCS 5/14-2(a)(3). However, this language does not mean that the

Publishing Provision only outlaws the use or dissemination of recordings

obtained in violation of the Recording Provision. The clause as authorized by

this Article modifies the phrase uses or divulges, not the phrase use of an

eavesdropping device. See People v. Davis , 199 Ill. 2d 130, 138 (2002) ( [T]he


39/60

31

last antecedent doctrine provides that relative or qualifying words or phrases

in a statute serve only to modify words or phrases which are immediately

preceding.) . Accordingly, it excludes from prosecution only the limited and

very specific use or dissemination activities described in the statutes

enumerated exemptions. See 720 ILCS 5/14-3 (Melongo App. at A-3 A-9). It

does not exclude from prosecution the publication of information that was

obtained in accordance with the Recording Provision, such as recordings made

with full consent.

The State might also point to the Illinois Pattern Jury Instruction

corresponding to the Publishing Provision, which, without any citation or

explanation, adds to the statutory elements a requirement that the

eavesdropping device have been used without the consent of all parties to the

conversation. IPI 12.03X, 12.04X. 3 But this consent exception has no textual

basis in the statute and should not be considered in determining whether the

Publishing Provision is drawn narrowly enough to survive intermediate

scrutiny. People v. Wright , 194 Ill. 2d 1, 29 (2000) (in construing a statute to

3 The Illinois Pattern Jury Instructions for 720 ILCS 5/14-2(a)(3) narrows thecrime even further. It provides as elements:

First Proposition: That the defendant used or divulged any information

obtained from a conversation; andSecond Proposition: That the defendant did so without the consent ofall parties to that conversation; andThird Proposition: That the defendant knew or reasonably should haveknown that this information was obtained through the use of aneavesdropping device.

Simply put, the Publishing Provision itself does not confine the covered informationto conversations, nor does it contain an element of lack of consent.


40/60


41/60

33

eavesdropping device i.e. conversations recorded without consent,

irrespective of privacy concerns it still would violate the First Amendment.

As discussed above, the Eavesdropping Statute makes it unlawful to record

patently public conversations that nobody intends to be private and in this way

completely sever[s] the link between the eavesdropping statutes means and

its end. Cf. Alvarez , 679 F.3d at 606. Because it is unconstitutional to place

such broad restrictions on recording, it is likewise unconstitutional to impose

equally broad restrictions on the use or dissemination of recordings.

1. The Publishing Provision is Unconstitutional as Applied to Ms.Melongo

Application of the Publishing Provision to the facts of this case violates

the First Amendment for the same reasons that the Recording Provision

cannot constitutionally be applied to Ms. M elongos conduct. As discussed

above at 19-20, the government official recorded by Ms. Melongo possessed no

privacy interest in the underlying conversation. She was speaking in her

official capacity to a member of the public about the positions and policies of

her office. Accordingly, the States interest in protecting conversational

privacy is not served by prohibiting Ms. Melongo from posting recordings of

those conversations on her website. On the other hand, Ms. Melongos Firs t

Amendment rights to publish information about government conduct and the

administration of the criminal justice system deserves strong protection. See


42/60

34

Farah v. Esquire Magazine , __ F.3d __, No. 12-7055, 2013 WL 6169660 (D.C.

Cir. Nov. 26, 2013) (holding that satirical blog post was entitled to First

Amendment protection); United States v. White , 610 F.3d 956, 962 (7th Cir.

2010) (holding that First Amendment may protect website posting unless

government proves intent to solicit crime of violence). Under intermediate

scrutiny, the State cannot restrict the publication of such materials consistent

with the First Amendment.

2. Independent of Ms. Melongos Conduct, the Publishing Provision is Facially Inavalid .

Regardless of the nature of the recordings Ms. Melongo posted here, the

staggeringly broad sweep of the Publishing Provision makes it

unconstitutional under the overbreadth doctrine. Again, a statute is facially

invalid under the First Amendment if a substantial number of its applications

are un constitutional, judged in relation to the statutes plainly legitimate

sweep. Stevens , 559 U.S. at 473. The only possible legitimate sweep of the

Publishing Provision is to protect the contents of people s private conversations

from being divulged to others without their consent. However, the statute as

written criminalizes the use and dissemination of vast amounts of material

containing no private information, including information obtained lawfully

and with the consent of all relevant parties.


43/60

35

Such an unbelievably broad criminal statute wanders far outside its

legitimate sweep. Moreover, it tramples on the presss virtually unfettered

right to publish lawfully obtained information about a matter of public

significance. See Smith v. Daily Mail Publishing Co. , 443 U.S. 97, 103 (1979)

(if a newspaper lawfully obtains truthful information about a matter of public

significance then state officials may not constitutionally punish publication of

the information, absent a need to furthe r a state interest of the highest order.) ;

Glik , 655 F.3d at 84 (recognizing that current developments have blurred the

lines between private citizen and journalist and that news stories are just as

likely to be broken by a blogger at her computer as a reporter at a major

newspaper.) This is clearly overbroad, and the Publishing Provision should

be facially invalidated.

Finally, even if limitations are read into the Publishing Provision

(despite the lack of any textual support for doing so) similar to those included

in the Pattern Jury Instructions, so that it criminalized only the dissemination

of materials obtained in violation of the Recording Provision, the statute still

would prohibit the use or divulgence of recorded conversations that were never

intended to be private, including the recording of public officials performing

their official responsibilities and holding forth on matters of public concern.

Because this overbreadth itself is substantial in relation to the statutes

legitimate sweep of conversational privacy, a version of the Publishing

Provision so narrowed should still be facially invalidated.
http://www.westlaw.com/Link/Document/FullText?findType=Y&serNum=1979135163&pubNum=708&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem&contextData=(sc.DocLink)#co_pp_sp_708_2671http://www.westlaw.com/Link/Document/FullText?findType=Y&serNum=1979135163&pubNum=708&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem&contextData=(sc.DocLink)#co_pp_sp_708_2671


44/60

36

II. The Eavesdropping Statute is Unconstitutional on its FaceUnder the Due Process Clause of the United States andIllinois Constitutions.

Separate and apart from the First Amendment arguments raised above,

the Eavesdropping Statute also is unconstitutional under the Due Process

Clauses of the United States and Illinois Constitutions. U.S. Const. Amend.

XIV; Ill. Const. Art. I 2. Generally, the legislature has wide discretion to

fashion penalties for criminal offenses. This discretion, however, is limited by

the constitutional guarantee of substantive due process, which provides that a

person may not be deprived of liberty without due process of law. People v.

Madrigal , 241 Ill. 2d 463, 466 (2011). A statute that does not affect a

fundamental constitutional right must pass the rational basis test in order

to comport with substantive due process. See People v. Carpenter , 228 Ill. 2d

250, 267 (2008).

Under the rational basis test, a statute will be sustained if it bears a

reasonable relationship to a public interest to be served, and the means

adopted are a reasonable method of accomplishing the desired objective.

Madrigal , 241 Ill. 2d at 466 (quoting Wright , 194 Ill. 2d at 24). A statute fails

the rational basis test if it does not represent a reasonable method of

pre venting the targeted conduct. Id. at 468 (citing Carpenter ).

A. The Recording Provision of the EavesdroppingStatute Fails the Rational Basis Test.

1. The means adopted are not a reasonable methodof preventing the targeted conduct .


45/60

37

The beginning point for rational basis review is to ascertain the public

purpose behind a statute to determine whether its provisions reasonably

implement that purpose. Carpenter , 228 Ill. 2d at 268. Again, the State

maintains that the purpose of the Eavesdropping Statute is to protect

conversational privacy . As discussed above, the statutes text and application

belie that claim. Nevertheless, privacy is the purpose asserted by the State,

and the only possible legitimate purpose for such a statute, so it is against this

purpose that the statute must be measured.

It is plain from the statutory language that the Recording Provision does

not represent a reasonable method of protecting conversational privacy. The

statute makes it a crime for anyone to knowingly and intentionally use an

eavesdropping device for the purpose of recording a conversation without

consent, but nowhere requires that the recorded conversation be private before

it gives rise to criminal sanction. 720 ILCS 5/14-2(a)(1). [B]y legislating this

broadly by making it a crime to audio record any conversation, even those

that are not in fact private the State has severed the link between the

eavesdropping statutes means and its end. Alvarez , 679 F.3d at 606

(emphasis in original).

Under the Recording Provisions broad reach , each of the following

people is a felon:

A bystander who witnesses and records the dialogue between ademonstrator marching in a public plaza in front of City Hall andpolice officers trying to disperse the group or a competing group ofdemonstrators arguing the opposing political position.


46/60

38

An excited supporter who records a candidate for Presidentdiscussing important issues with potential voters at a campaign stopat Mannys Delicatessen.

A tourist who records a proselytizer and heckler engage in ananimated debate over the existence of God at Millennium Park indowntown Chicago.

A sports fan who records the I -L- L / I -N- I call and response cheerat a University of Illinois football game.

A high school student who records a debate at a PTO meetingbetween parents and his principal over banning certain library booksso that he can write a report for his civics class. 4

Each of these people knowingly and intentionally uses an

eavesdropping device for the purpose of . . . recording a conversation

without the consent of all the parties, but each does so without any intent to

invade someones privacy or record a private conversation i.e. without any

intent to eavesdrop. Making criminals out of people who record conversations

that are plainly and openly public is simply not related to the statutes

purpose and not a rational way of addressing the problem of eavesdropping.

See Madrigal , 21 Ill.2d at 473.

4 DeBoer v. Village of Oak Park , 90 F. Supp. 2d 922, 923 (N.D. Ill. 1999),concluded that the Eavesdroppin g Statutes definition of conversation did not

include statements made by speakers to the audience at a public event. However,the c ourt made clear that it did apply to conversations between individuals at publicevents and any other exchange or mutual discourse as opposed to a statement ordeclaration by one person alone. Id. at 924. Each of these examples reflects thisdefinition of conversation and thus constitutes an illustration of prohibited conduct.See also Plock v. Board of Education of Freeport School District No. 145 , 396 Ill. App.3d 960 (2d Dist. 2009) (holding that a school district would violate the EavesdroppingStatute if it went ahead with a plan to audio and video tape teachers teaching studentsin a special education classroom, absent express consent).


47/60

39

In a line of cases scrutinizing the constitutionality of criminal statutes,

this Court has held that a statute fails rational basis review if it potentially

subjects wholly innocent conduct to criminal penalty without requiring a

culpable mental state beyond mere know ledge. Madrigal , 241 Ill. 2d 463, 467

(2011) (citing Carpenter , 228 Ill. 2d at 269; Wright , 194 Ill. 2d at 25); see also

In re K.C. , 186 Ill. 2d 542 (1999); People v. Zaremba , 158 Ill. 2d 36 (1994);

People v. Wick , 107 Ill. 2d 62 (1985). Wholly innocent conduct means conduct

not germane to the harm identified by the legislature, in that the conduct is

wholly unrelated to the legislatures purpose in enacting the law. People v.

Hollins , 2012 IL 112754, at 28. In such cases, a statute fails the rational

basis test because it does not represent a reasonable method of preventing the

targeted conduct. Madrigal , 241 Ill. 2d at 468.

In Carpenter , this Court held unconstitutional a statute making it a

crime to own or operate a vehicle with a secret compartment. The purpose of

the statute was to deter people from using false or secret compartments to

conceal illegal and dangerous items, but the statute was written so broadly it

became a felony to drive a car with a secret compartment used to hide legal

items like jewelry or a risqu magazine. Carpenter , 228 Ill.2d at 269-270.

This Court concluded that the criminal statute was unconstitutional and not

reasonably related to the legislatures purpose because it did not require the

government to prove a defendant had the intent to conceal anything illegal. Id.

at 267.


48/60

40

In effect, this Court held in Carpenter that the legislature could not

outlaw entirely a particular method of concealment (secret compartments) just

because some people were using that method for illicit purposes it had to

limit its focus to those people using the method for illegal ends. The same

analysis applies here. Instead of limiting its focus to people who record private

conversations without the consent of the other participants, the legislature has

outlawed the nonconsensual recording of any and all conversations, even

conversations that are public. In the interest of preventing the concealment of

contraband, it was unconstitutional to outlaw secret compartments that do not

contain contraband; and in the interest of protecting conversational privacy, it

is similarly unconstitutional to outlaw recordings that do not contain private

conversations.

In Madrigal , this Court held unconstitutional an identity theft statute.

The purpose of that law was to protect the economy and people of Illinois from

the ill -effects of identity theft. 241 Ill . 2d at 467. Yet in support of this goal,

the legislature broadly made it a crime to knowingly use the personal

identification information . . . of another for the purpose of gaining access to

any record . . . of that person, without the prior express permission of that

person. 72 0 ILCS 5/16G 15(a). As this Court explained, a statute written so

broadly is unconstitutional because it would potentially punish as a felony a

wide array of wholly innocent conduct. 241 Ill. 2d at 471. For example, it

would criminalize a husband who knowingly calls a repair shop and uses


49/60

41

[the] personal identification information of his wife for the purpose of gaining

access to records about his wifes car, if he did not have his wifes express

permission. Id. Such conduct, while criminal under the statute, was wholly

innocent because it was not identity theft and was not germane to the harm

the legislature sought to address.

There is no meaningful way to distinguish the Eavesdropping Statute

from the identity theft statute struck down as unconstitutional in Madrigal .

Like the identity theft statute, it purports to serve a public purpose: the

protection of private conversations from eavesdroppers. But also like the

identity theft statute, it legislates too broadly and punishes people who engage

in wholly innocent conduct unrelated to any infringement on private

conversations.

The legislative history of the Recording Provision further highlights its

impermissible scope. In People v. Beardsley , 115 Ill. 2d 47 (1986) and People v.

Herrington , 163 Ill. 2d 507 (1994), this Court made clear that the prior version

of the statute permitted one party to record a conversation without the consent

of any other participant. According to those cases, the purpose underlying the

Eavesdropping Statute was to protect the privacy of parties to a conversation

that occurs 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. Beardsley , 115 Ill. 2d at 52-53. Given this purpose, this Court

reasoned, it could not be illegal for one party to a conversation to record that


50/60

42

conversation, without consent of the other party, because the person being

recorded has no reasonable expectation of privacy vis--vis the person doing

the recording. Herringon , 163 Ill. 2d at 511.

As the State points out, the legislature adopted the current version of

the statute in response to Beardsley and Herrington . See State Br. at 13. The

legislature desired to overturn those decisions to the extent they allowed a

person who reasonably believed he was engaged in a private conversation to

be surreptitiously recorded by the other participant. Id. ; see also Alvarez , 679

F.3d at 87. But in the drafting process, the legislature threw out the baby with

the bathwater. Instead of crafting language that protected the perceived

privacy rights of the person being recorded, the legislature completely

eliminated the concept of privacy from the Eavesdropping Statute. The result

is that a person becomes a felony eavesdropper even if he records a

conversation under circumstances in which nobody could possibly expect it to

be private. In this way, the legislature completely untethered the crime from

the harm it is intended to prevent, and therefore adopted an unreasonable

method of achieving its goal.

2. The State s arguments in support of the statute fall short.

The State argues that even if the Eavesdropping Statute is overbroad,

and may be unconstitutional as applied to certain situations such as those in

Alvarez , it is not unconstitutional on due process grounds as applied to Ms.

Melongo, who surreptitiously recorded a telephone conversation. See State Br.


51/60

43

at 10, 11, 13-14, 17, 21. The State cites especially to Salerno , 481 U.S. at 745,

and Illinois cases following that decision, which held that a person challenging

a legislative act on its face must establish that no set of circumstances exists

under which the Act would be valid. Th ese cases are wholly inapplicable.

As a matter of law, t he specific facts of Ms. Melongos case are irrelevant

to this Courts substantive due process analysis. In the line of cases analyzing

substantive due process challenges to criminal statutes, beginning with Wick

and continuing through Madrigal , this Court has never considered material

the specific facts giving rise to the prosecution. See, e.g., Wright , 194 Ill. 2d at

28- 30 (2000) (declining to address specific facts of defendants case challenging

vehicle record keeping statute where Court found statute not reasonably

designed to achieve its purpose .) The analysis in each of these cases focuses

solely on the fit between the conduct proscribed and the public interest to be

achieved, without regard for the underlying facts. Indeed, the State would be

hard- pressed even to identify the defendants underlying conduct in many of

these cases. See, e.g., Madrigal , 241 Ill. 2d at 464-65 (describing only the

charge the defendant faced, not the underlying facts); Zaremba , 158 Ill. 2d at

37-38 (same). 5

5 Notably, the aggravated-arson statute addressed in Wick was foundunconstitutional on due process grounds because it did not require the state to proveas a prerequisite the elements of simple arson i.e. an unlawful purpose in setting afire even though the fire in that case was set under highly suspicious circumstances.Wick , 107 Ill. 2d at 63 (fire set in tavern had four separate points of origin and anaccelerant was used).


52/60

44

And this is intentional. In Madrigal , the State urged this Court to

overturn th e Carpenter-Wick line of cases as inconsistent with Salerno , and

require defendants to prove that the statute they challenged was

unconstitutional under all circumstances. Madrigal , 241 Ill. 2d at 479. This

Court flatly rejected that argument, explaining that Salerno and its progeny

do not control challenges to penal statutes that lack a culpable mental state

and thereby criminalize[] a significant amount of innocent conduct. Id. at

477. This Court explained further that the States position ignores the

particular care the United States Supreme Court has taken to avoid construing

a statute to dispense with mens rea where doing so would criminalize a broad

range of apparently innocent conduct. Madrigal , 241 Ill.2d at 477-8 (citing

Staples v. United States , 511 U.S. 600, 610 (1994)). The State here completely

ignores this holding, and offers no reason why Madrigal should be revisited or

this entire line of cases overruled.6

Next, the State disputes that the Eavesdropping Statute criminalizes

wholly innocent conduct because, unlike the statute at issue in Madrigal , it

requires a defendant act with both knowledge and intent, and for the purpose

of recording a conversation without the parties consent. State Br. at 21. In

6 Even if the facts of this case were relevant, Ms. Melongo rejects the implicationthat the telephone calls she recorded were private and, therefore, that theEavesdropping Statute can be constitutionally applied to her. As explained in greaterdetail above, Ms. Melongo recorded a conversation she had with a public official actingin her official capacity about a matter of public importance. It was therefore a publicconversation in which Ms. Taylor had no privacy interest.


53/60

45

support of this argument, the State picks apart the examples of innocent

conduct given in People v. Drew . State Br. at 22-24.

Without addressing the merits of the Drew examples, the States effort

to distinguish Madrigal must fail. As explained above, there is no meaningful

distinction between the Eavesdropping Statute and the identity theft statute

struck down in Madrigal . Each requires a person to act with knowledge and

intent and with a particular purpose, but neither requires that the purpose be

criminal i.e. that the defendant intend to cause the harm the statute was

designed to prevent. In Madrigal , the identity theft statute required the State

to prove only that a person acted with the purpose of obtaining (without

consent) information of another, even under circumstances that did not

constitute identity theft. Here, the Eavesdropping Statute requires the State

to prove only that a person acted with the purpose of listening in on or

recording (without consent) a conversation, even when the parties to that

conversation intend for it to be public and open and available for anyone to

hear or record. The important public interest the Eavesdropping Statute

purportedly protects is privacy not some absolute right to consent any time

someone records what you say to another person, whether the comments are

private or public. Consequently, the Eavesdropping Statute is not saved

because it requires proof that a person making a recording lacked consent. To

survive constitutional challenge, and to avoid sweeping in wholly innocent

conduct, the statute must require proof that a defendant acted with the


54/60

46

purpose of invading someones privacy . The Eavesdropping Statute s express

rejection of this element is its fatal flaw.

For this reason, Ms. Melongos stipulation at trial that she knowingly

and intentionally recorded her conversations with Ms. Taylor does not

constitute an admission that she acted with a criminal purpose. Contra State

Br. at 21. Not only has Ms. Melongo maintained throughout this proceeding

that she is innocent under the statute as written, but she has never stipulated

or otherwise admitted that she acted with the purpose of invading someones

privacy. She recorded and published the conversation of a public official acting

in her official capacity with a member of the public about a public matter a

conversation that is undeniably public .

B. The Publishing Provision of the EavesdroppingStatute also Fails the Rational Basis Test.

The Publishing Provision of the Eavesdropping Statute also violates

Due Process because it does not represent a reasonable method of preventing

the use or divulgence of private information obtained by an eavesdropper. Like

the Recording Provision, the only possible purpose of the Publishing Provision

could be to protect conversational privacy. But the Publishing Provision casts

far too wide a net to reasonably serve that interest.

As discussed above, the Publishing Provision outlaws the use or

divulgence of any information . . . obtained through the use of an

eavesdropping device. An eavesdropping device is defined to include any

device capable of recording an oral conversation, which would include any


55/60

47

video camera, audio recorder, or smartphone with audio recording capabilities.

By its plain terms, it is not limited to the use or dissemination of private

conversations recorded without consent. In fact, both privacy and consent are

wholly immaterial. Nor is it limited to the publication of conversations illegally

recorded, or to recorded conversations at all.

The wholly innocent conduct criminalized by this provision is truly

limitless, including a citzen who shares a recording of any of the interactions

listed above at 38, or uses such a recording for any purpose, including writing

a letter to the editor of a newspaper, a school report, or a blog posting. It even

criminalizes the actions of a reporter who uses her consensual recording of an

interview to write a news story regarding the information obtained in that

recorded interview. There can be no dispute that these represent wholly

innocent acts having absolutely nothing to do with protecting conversational

privacy, yet the Publishing Provision makes them all felonies.

Nor could the statute be saved by construing the Publishing Provision

more narrowly to apply only to the use or divulgence of information unlawfully

obtained, or information obtained from conversations. Reading the

Publishing Provision this narrowly does nothing more than make it as broad

as the Recording Provision. That is, even construed narrowly, it still prohibits

a person from publishing information obtained from a nonconsensual recording

of a public conversation, and makes it unlawful to post online, forward to

friends, or report in the newspaper the contents of the bystanders recording


56/60


57/60

49

public officials. Whichever analysis is employed, however, the end result must

be that the trial court decision is affirmed and the criminal charges against

Ms. Melongo are dismissed.

Dated: December 6, 2013Respectfully submitted,

ANNABEL MELONGO,Defendant-Appellee

_________________________________________One of the Attorneys for Defendant-Appellee


58/60


59/60

51

CERTIFICATE OF SERVICE BY MAIL

I, Gabriel Bankier Plotkin, an attorney, hereby certify that I filed withthe Illinois Supreme Court and served upon counsel the forgoing Brief of

Defendant-Appellee Annabel Melongo by enclosing copies thereof inenvelopes, addressed as shown, with first class postage prepaid, anddepositing them in the U. s. Mail Depository at 180 N. LaSalle, Chicago,Illinois on December 6, 2013.

Lisa Madigan Attorney General of Illinois100 West Randolph Street12 th FloorChicago, IL 60601

Anita AlvarezStates Attorn ey of Cook County309 Richard J. Daley CenterChicago, IL 60602

Dated: December 6, 2013

Gabriel Bankier Plotkin


60/60

TABLE OF CONTENTS TO THE APPENDIX

PAGE(S)

Eavesdropping Statute .......................................................................... A-1-A-10

Order of the Crawford County, Illinois Circuit Court,Entered September 15, 2011 ................................................................ A-11-A22

Order of the Circuit Court of Cook County, Illinoisentered March 2, 2012 .......................................................................... A-23-A34

Order of the Kane County, Illinois Circuit Courtentered February 13, 2013 .................................................................... A-35-A48

Rights, eavesdropping law collide in filmmakers case ,October 7, 2004 Chicago Tribune ......................................................... A-49-A53

melongo's eavesdropping appeal brief at the illinois supreme court

Documents