People v. Melongo

Citation: 2014 IL 114852Docket: 114852

Court: Illinois Supreme Court; April 24, 2014; Illinois; State Supreme Court

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A defendant, Annabel Melongo, could not be criminally prosecuted for disclosing recorded conversations that violated Illinois' eavesdropping statute, as the statute was deemed unconstitutional due to overbreadth and a violation of the First Amendment. The Cook County Circuit Court found the statute unconstitutional, leading to an appeal. Melongo had been charged with eavesdropping after recording and posting conversations with a court reporter about the accuracy of a court transcript. She argued that her actions fell under an exception to the statute, claiming she had reasonable suspicion that a criminal offense had occurred. The State contended that the exception did not apply since the court reporter was not a party to the conversations. The trial court agreed with the State’s position and barred Melongo from using this defense. The Supreme Court affirmed the circuit court’s judgment, with the Chief Justice delivering the opinion and all justices concurring. The American Civil Liberties Union of Illinois participated as amicus curiae in the case.

Defendant's motion to reconsider was denied after she argued that Taylor was part of a criminal conspiracy, allowing for a statutory exception at trial. Following this, she filed a motion to dismiss, claiming the eavesdropping statute was unconstitutional under the due process clauses of the Illinois and U.S. Constitutions due to a lack of rational relationship between two-party consent and state interest; this motion was also denied. The trial proceeded but ended in a mistrial due to a hung jury and was reassigned to a second judge. Subsequently, the defendant filed a pro se motion declaring the statute unconstitutional, citing First Amendment and due process violations. The State contended the statute was constitutional as applied to her. After a hearing, the court found the statute facially unconstitutional and unconstitutional as applied to the defendant, citing vagueness and the lack of a culpable mental state that subjects innocent conduct to prosecution, violating substantive due process. The court referenced American Civil Liberties Union v. Alvarez to support its decision regarding First Amendment claims. The eavesdropping statute, as outlined in Section 14-2, requires consent from all parties for recording conversations. The State argued that the statute does not violate due process as it includes a culpable mental state requirement. It contended the statute is constitutional as applied to the defendant since she knowingly recorded and divulged conversations. Defendant raised four issues, asserting that both the recording and publishing provisions of the statute are unconstitutional under First Amendment and due process grounds, and alternatively, that the statute is unconstitutional as applied to her recording of a public official acting in their official capacity.

The State contends that the statute in question is a content-neutral regulation of First Amendment rights, asserting it is narrowly tailored and that no First Amendment issues arise. The constitutionality of statutes is subject to de novo review, with a presumption of constitutionality resting on the challenger to prove otherwise. Courts are obligated to interpret statutes in a way that preserves their constitutionality when feasible. The trial court’s ruling, however, was not solely based on due process; it considered the defendant's First Amendment challenge and referenced the Seventh Circuit's ruling in Alvarez, which is pertinent to First Amendment issues. The trial court found the statute vague and overbroad, which are concepts applicable to both due process and First Amendment challenges. A statute is deemed void for vagueness if it encompasses a significant amount of constitutionally protected conduct. While the trial court did not explicitly cite the First Amendment, its findings align with First Amendment considerations, allowing for the defendant's arguments to be addressed. The State argues that the defendant should be precluded from challenging the statute’s constitutionality because her trial defense contradicted this claim; she acknowledged making the recordings but argued they fell under a statutory exception that permits recording under suspicion of criminal activity. The State maintains that her admission undermines her assertion that the statute is vague or overbroad.

Defendant raised due process and First Amendment challenges regarding the constitutionality of the statute under which she was charged, both before and after a mistrial. The State did not clarify why a defendant cannot alternatively argue that a statute is unconstitutional and, if that fails, that an exception to the statute justifies her actions. The doctrine of overbreadth allows a party charged for speech or expressive conduct to challenge a law on its face if it restricts protected expression, even if their own conduct is unprotected. This is due to concerns that an overbroad statute could deter individuals from engaging in protected speech due to fear of prosecution. 

The merits of the First Amendment claim will be considered, guided by the holding in a related case, People v. Clark. The defendant posits that the statute is subject to intermediate scrutiny, while the State claims it is content-neutral, which also suggests intermediate scrutiny. A content-neutral law is permissible if it promotes significant governmental interests unrelated to free speech suppression and does not excessively burden additional speech.

Both parties concur that the eavesdropping statute aims to protect conversational privacy. However, the statute broadly categorizes all conversations as private, requiring consent for recording, regardless of the participants' expectations of privacy. The State contends that the decision to create a potentially over-inclusive law is a legislative issue. Nevertheless, such broad criminalization of innocent conduct, including the recording of public arguments or debates, is deemed unsustainable. The statute fails to differentiate between open and surreptitious recording, imposing felony charges for recording without consent, which complicates individuals' ability to legally record conversations when all parties are aware of the recording.

Consent to recording under the eavesdropping statute may be express or implied, with implied consent inferred from surrounding circumstances indicating acknowledgment of the recording. The court determined that the recording provision of the eavesdropping statute (720 ILCS 5/14-2(a)(1), West 2008) restricts more speech than necessary for protecting conversational privacy, failing intermediate scrutiny and rendering it unconstitutional due to numerous applications violating the First Amendment. 

The defendant also challenges the "publishing provision" of the statute (720 ILCS 5/14-2(a)(3), West 2008), which criminalizes the publication of any recording made on a cellphone without regard for consent. The State argues that Illinois Pattern Jury Instructions imply a requirement that the recording must violate the recording provision for prosecution. However, the State conceded that if the recording provision is unconstitutional, the publishing provision must also be invalidated, referencing the Supreme Court case Bartnicki v. Vopper, which prohibits states from barring disclosure of information related to public importance when obtained illegally by another party. 

Since the court has deemed the recording provision unconstitutional, the defendant is considered an innocent party facing an unconstitutional prohibition against disclosure, regardless of the public interest of the recorded content. Consequently, the court concludes that the defendant cannot be prosecuted for revealing the contents of her recordings, finding the publishing provision overbroad as well. The judgment of the circuit court is affirmed.