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NO.

114852
IN THE
SUPRE:ME COURT OF ILLINOIS
PEOPLE OF THE STATE
OF ILLINOIS,
Plaintiff-Appellant,
vs.
ANNABEL MELONGO,
Defendant-Appellee.
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Appeal from the
Circuit Court of Cook County,
Criminal Division
No. 10 CR 8092
The Hon. Steven J. Goebel
Judge Presiding
BRIEF OF DEFENDANT-APPELLEE
ANNABEL :MELONGO
ORAL ARGUMENT REQUESTED
Gabriel Bankier Plotkin
Daniel M. Feeney
Alexandra K. Block
MILLER SHAKMAN & BEEM LLP (Firm No. 90236)
180 N. LaSalle Street
Suite 3600
Chicago, IL 60601
Tel: 312.263.3700
FILED
DEC - 6 2013
SUPREME COURT
CLERK
December 6, 2013
TABLE OF CONTENTS AND AUTHORITIES
NATURE OF THE CASE ....................................... 1
ISSUES PRESENTED FOR REVIEW ............................ 2
STANDARD OF REVIEW ...................................... 2
People u. Madrigal,
241 Ill .2d 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
American Civil Libert ies Union v. Alvarez,
679 F.3d 583 (7th Cir. 2012) .. . . .. ....... .. . .. ..... . . . . . . . 6, 7
ARGUMENT ....................... .. .................... . .... 8
I. The Eavesdropping Statute is Unconstitutional Under
the First Amendment and Article I, Section 4
of the Illinois Constitution .. . .............................. 10
U.S. Const. Amend. I ..... .. ..... . .... . ...... .... .... ..... .. 10
Ill. Const. Art. I 4 .. .. .............. .. .. ........ .. ......... 10
City of Chicago v. Holland,
206 Ill.2d 480 (2003) .............. . ....... ... ... . . . .. . .... 11
A. The Recording and Publishing Provisions ofthe Eavesdroppi ng
Statute Burden Constitutionally-Protected Expression .... 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. Cuniffe,
G55 F.3d 78 (1 "t Cir. 2011) ............ . . ...... ... 12, 1 ~ 3 14
Bartnichi v. Vopper,
532 U.S. 514 (2001) ................................... 13
Lulay v. Peoria Journal-Star, Inc.,
34 Ill. 2d 112 (1966) ................................... 13
United States v. Wecht,
537 F.3d 222 (3d Cir. 2008) ............ . ....... . .. . ... .. 14
B. The Eavesdropping Statute is Subject
to Intermediate Scrutiny ............................... 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 Creator,
198 Ill. 2cll15 (2001) ........ . .. ... ...... .. ...... . . Hi, 16
ll
City of Chicago v. Pooh Bah Enterprises, Inc.,
224 Ill. 2d 390 (2006) . ....... . .. . .... . .. .. .... .. .. . .... 15
Watchtower Bible & Tract Society of New Inc.
L' . Village of Stratton,
536 U.S. 150 (2002) . ... .. ..... . .. . ....... . ... . . . . . ... . 15
C. The Recording Provision Fails Intermediate Scrutiny .... 16
American Civil Liberties Union v. Alvarez,
679 F.3d 583 (7th Cir. 2012) .... . ... . ........ . .... 16-18, 21
720 ILCS Ann. 5/14-1, Committee Comments-
at 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) . ... .. .... . ..... .. ..... 19
State 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. Vopper,
532 U.S. 514 (2001) .... . ..... . .. . ... . .. .. ........... .. 20
720 ILCS 5/14-36) .. .. ...... . .. . .... . ............. ... .... 20
1. The Recording Provision is Unconstitutional as Applied to
Ms. Melongo ....................................... 21
American Civil Liberties Union v. Alvarez,
679 F.3d 583 (7th Cir. 2012) .. . ....... .. .. .. . .. .. 22-24
111
Hushey v. Nat ional Broadcasting Co.,
632 F. Supp. 1282 (N.D. m. 1986) . . . .... . . . . ..... .. . . 22
Glih v. Cuniffe,
655 F.3d 78 (1't Cir. 2011) .................. .. .. ..... 23
In reAssociated 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
Jesse H. Alderman, Police Privacy in the iPhone Era?: The Need
for Safeguards in State Wiretapping Statutes to Preserve
the Civilian's Right to Record Public Police Activity,
9 FrRST AlVlEND. 1. REV. 487 (2011) ... .. . ..... .. . . ... .. 25
2. Independent of Ms. Melongo's Conduct, the Recording
Provision is Facially Invalid Under the
Overbreath Doctrine ............................... 26
United States v. Stevens ,
599 U.S. 460 (2010) ...... . . . . . .... . ...... .. ... . 2G-28
People v. Williams ,
235 Ill. 2d 178 (2009) 2(i, 28
Free Speech Coalition, Inc.
v. Attorney General of the United States,
677 F.3d 519 (3d Cir. 2012) .... ... .. . . ... .. ... .. .. 27, 28
720 ILCS 5/14-1(d) ....... ... ............... ....... .... 28
D. The Publishing Provision Fails Intermediate Scrutiny .... 29
720 ILCS 5/14-2(a)(3) . ... ... ....... .. .... .. .... . .. ..... .. . 30
lV
720 ILCS 5/14-l(a) . . . ............ . .. . ...... .. . . . . . . ...... 30
American Civil Liberties Union v. Alvarez,
G79 F.3cl 583 (7th Cir. 2012) .. . .... ... .. . . . .......... 30, 33
People ex rel . Ryan v. World Church of the Creator,
198 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. Wright,
194 Ill. 2d 1 (2000) ... . . .... .. ..... ..... ... . ... . . . .. .. 32
Public Act 76-1110 . . ... .... ...... .. .. ................ .. .. 32
In re K.C.,
186 Ill. 2d 542 (1999) . . ..... ................. . . ... . .. . 33
1. The Publishing Provision is Unconstitutional
as Applied to Ms. Melongo ........................ 34
Farah v. Esquire Magazine,
_ F.3d _ , No. 12-7055, 2013 WL G169660
(D.C. Cir. Nov. 26, 2013) ........................ 34
United States v. White,
610 F.3d 956 (7th Cir. 2010) ..................... 34
2. Independent ofMs. Melongo's Conduct, the Publishing
Provision is Facially Invalid ..................... 35
U.S. v. Stevens,
559 U.S. 460, 473 (2010) .. .. ... ............ . ..... 35
Smith v. Daily Mail Co.,
433 U.S. 97 (1979) .. .. .. ... .... .. .. ... . .. .. .. .. 35
v
Glih v. Cuniffe,
655 F.3d 78 (1st Cir. 2011) ....................... 35
II. The Eavesdropping Statute is Unconstitutional on its
Face under the Due Process Clause of the United States
and Illinois Constitutions ............................ 36
U.S. Canst. Amend. XIV . . ................ ... .. .... 36
Ill. Canst. Art. I 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
People v. Madrigal,
241 Ill.2d 463 (2011) ......................... 3G, 37
People v. Carpenter,
228 Ill.2d 250 (2008) ................. .. . ... .. .. . 37
A. The Recording Provision of the Eavesdropping Statute
Statute Fails the Rational Basis Test ............... 37
1. The means adopted are not a reasonable method
of preventing the targeted conduct ............. 37
People v. Carpenter,
228 Ill.2d 250 (2008) ..... . . .......... .. 37, 40, 41
720 ILCS 5/14-2(a)(1) ........................... 38
Anterican Civil Liberties Union v. Alvarez,
679 F.3d 583 (7th Cir. 2012) ............... 38, 42
DeBoer v. Village of Oah Parh,
90 F. Supp.2d 922 (N. D. Ill. 1999) .. .. .. ... ..... 38
Ploch u. Board of Education. of Freeport
School District. No. 145.
396 Ill. App. 3d 960 (2d Dist. 2009) ...... . ...... 39
People v. Madrigal ,
241 Ill.2d 463 (2011) .... ... .. . .. ....... .. 3 ~ l 41
Vl
In re K.Co,
186 Ill.2d 542 (1D99) 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 39
People vo Zaremba,
158 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 Vo Hollins,
2012 IL 112754, at , [28 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 vo Herrington,
163 Ill.2d 507 (1994) . 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 42
2. The State's arguments in support of the
statute fall short ............................. 43
U. So uo 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 uo Madrigal,
241 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 uo Wright ,
194 Ill. 2d 1 (2000) 0 0 0 0 0 0 0 0 0 0 0 0 0 0 43
People Vo Zaremba,
158 Ill.2d 36 (1994) 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 44
B. The Publishing Provision of the Eavesdropping
Statute also Fails the Rational Basis Test. . ........ 4 7
III. CONCLUSION ..................................... 49
Vll

NATURE OF THE CASE

Annabel Melongo recorded three telephone conversations she had with
a public official who was acting in her official capacity and communicating
about a public matter. Ms. Melongo then posted those recordings on a website
designed to make transparent to the public how the State was prosecuting a
criminal case against her.
Based on this conduct, the State charged Ms. Melongo with six counts of
eavesdropping in violation of the Illinois Eavesdropping Statute, 720 ILCS
5/14-2(a) (Eavesdropping Statute). The first three counts were for recording
each of the three conversations, in violation of 720 ILCS 5/14-2(a)(1)
(Recording Provision). The second three counts were for posting each of these
recordings to her website, in violation of 720 ILCS 5/14-2(a)(3) (Publishing
Provision).
Ms. Melongo moved to dismiss the charges against her. Her motion was
denied, and she proceeded to trial. On January 14, 2011, a mistrial was
declared when the jury deadlocked.
On November 30, 2011, Ms. Melongo filed an amended motion to dismiss
and declare the Eavesdropping Statute unconstitutional. In an oral ruling,
Judge Steven J. Goebel found the statute unconstitutional. On July 26, 2012,
Judge Goebel issued a written order consistent with his prior oral ruling, in
compliance with Supreme Court Rule 18.
The State filed a timely Notice of Appeal on August 9, 2012.
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ISSUES PRESENTED FOR REVIEW

1. Whether the Recording Provision of the Eavesdropping Statute
(Subsection 14-2(a)(1)) is unconstitutional under the First Amendment
to the United States Constitution and Article I, Section 4 of the Illinois
Constitution?

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

3. Whether the Recording Provision of the Eavesdropping Statute
(Subsection 14-2(a)(1)) is unconstitutional under the Due Process Clause
of 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 Clause
of 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:
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Knowingly and intentionally uses an eavesdropping device for the
purpose of hearing or recording all or any part of any conversation
or intercepts, retains, or transcribes electronic communication
unless he does so (A) with the consent of all of the parties to such
conversation or electronic communication or (B) in accordance
with [state wiretap laws].

A conversation is defined as follows:
For the purposes of this Article, the term conversation means 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).

An eavesdropping device is defined as follows:

An eavesdropping device is any device capable of being used to
hear or record oral conversation or intercept, retain, or transcribe
electronic communications whether such conversation or
electronic communication is conducted in person, by telephone, or
by any other means; Provided, however, that this definition shall
not 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 [state
wiretap laws], any information which he knows or reasonably
should know was obtained through the use of an eavesdropping
device.


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,
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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.
5
Ms. Melongo had three subsequent telephone conversations with Ms.
Taylor. C413-20; C422-26; C427-29. Each conversation concerned the
inaccuracy 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. Taylors
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.
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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 Reporters 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.
7
Alvarez held that the Illinois eavesdropping statute restricts 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
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
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 overbreadth 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.
10
I. The Eavesdropping Statute is Unconstitutional Under the
First Amendment and Article I, Section 4 of the Illinois
Constitution.

Ms. Melongo has a constitutionally protected right to record and publish
her conversations with Ms. Taylor under the First Amendment to the United
States Constitution, U.S. Const. Amend. I, and under Article I, Sec. 4 of the
Illinois Constitution. The conversations were public, not private. They
involved a public official speaking in her official capacity to a member of the
public about a matter of public importance and thus could not reasonably be
expected to be private. And Ms. Melongos efforts to gather evidence of
government misconduct by recording the conversations and posting them to
the internet for public scrutiny comprise core First Amendment activity that
cannot be infringed upon lightly.
The Eavesdropping Statute is unconstitutional because it is not properly
tailored to avoid infringing these core First Amendment interests. It is facially
invalid because it creates a blanket prohibition on the nonconsensual recording
of all conversations even those that are public and whose recording is plainly
protected by the First Amendment and thereby burdens far more protected
speech than necessary to serve its purported goal of protecting conversational
privacy. At a minimum, it is unconstitutional as applied to Ms. Melongo, who
recorded and published non-private conversations she had with a public official
acting in her official capacity about a matter of public importance.
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 regardless 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 Eavesdropping
Statute 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
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 guaranty 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 recording 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,
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
speech and press.).
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; rather, 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 Commn, 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)
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
important 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 the 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 when [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.

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 protecting
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 protect 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
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 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. Rather than attempting to tailor the statutory
prohibition 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 privacy
interests 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
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 police
officers, court clerks and other public employees.

19
In People v. Drew, 10 CR 00046, Cir. Court of Cook County, Melongo
App. at A-23, an individual was prosecuted for recording police officers
performing official duties in public.

In People v. Clark, 11 CF 464, Cir. Court of 16th Cir., Kane County,
Melongo App. at A-35, an individual was prosecuted for recording a
public court proceeding.

Also, on October 7, 2004, eavesdropping charges were brought by
Champaign County prosecutors (though eventually dropped) against a
person who recorded police traffic stops. See Jon Yates, Rights,
Eavesdropping Law Collide in Filmmakers Case, CHICAGO TRIBUNE,
Oct. 7, 2004, Melongo App. at A-49..

No privacy interests were protected in any of these cases because the
public officials recorded possessed no privacy interest in these interactions.
Illinois law is clear that a person performing official duties has no right of
privacy as to information concerning his or her discharge of those duties.
Huskey v. National Broadcasting Co., 632 F. Supp. 1282, 1290 (N.D. Ill. 1986)
(citing Cassidy v. American Broadcasting Cos., 60 Ill. App. 3d 831, 83738 (1st
Dist. 1978)); see also State v. Flora, 845 P. 2d 1345, 1358 (Wash. App. 1992) (in
eavesdropping case, court declined the States invitation to transform the
privacy act into a sword available for use against individuals by public officers
acting in their official capacity.).
Government employees providing services to the public are not acting
as private citizens and possess no privacy interest in shielding their official
speech and conduct from recording. Seth F. Kreimer, Pervasive Image Capture
and the First Amendment: Memory, Discourse, and the Right to Record, 159
UNIV. OF PENN. L. REV. 335, 396-97 (2011). The actions and statements of such
20
public servants in carrying out their duties are by 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 of
conversational privacy. Under Subsection 14-3(j), telemarketers calling a private
citizen to solicit him for business or to conduct opinion research can record those calls
without giving notice or seeking their consent. See 720 ILCS 5/14-3(j) (requiring only
that the employees of the corporation be given notice) (attached at Melongo App. at A-
6).
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. As 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
addressing 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
22
protests and demonstrations. 679 F.3d at 588. The Seventh Circuit explained
that such communications, made by public officials performing their official
duties 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 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.); 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)
23
provide a check on the activities of judges and litigants, and (3) foster more
accurate fact finding.) (internal citations 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 only
open recordings. The distinction between open and concealed
recording, however, may make a difference in the intermediate-
scrutiny calculus because surreptitious recording brings stronger
privacy 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
24
statements remains public and devoid of any privacy interest by its very
nature.
2
Likewise, the fact that Ms. Taylor spoke over the telephone, rather
than on the street or at the courthouse, does not transform her substantively
public statements into a private conversation, the recording of which the State
can criminalize. It is the speaker (a public official), the context (speaking to a
member of the public) and the subject matter (official government business)
that make her conversations public not the means of communication. See
United States v. Wells, 789 F. Supp. 2d 1270, 1277 (N.D. Okla. 2011) (Police
officers are public officials and are thus expected to carry out their duties
openly and subject to the reasonable scrutiny of the citizens they serve.)
The fact that a telephone conversation is not inherently private is made
clear by the States citation to eleven eavesdropping statutes in other states.
State Br. at 14-17. These statutes do not support the States claim that other
jurisdictions prohibit the recording of any telephone call without consent.
Rather, many of the cited statutes allow non-consensual recording of the type
engaged in by Ms. Melongo (i.e., tape recording by one party to a phone
conversation) unless the telephone call is private or confidential. See, e.g.,
Conn. Gen. Stat. 2-570d (prohibiting recording without consent an oral
private telephonic communication); Cal. Penal Code 632 (criminalizing

2
In this context, the only significance of the relative openness of the recording
is whether consent could be given, not whether the conversation was private (and
permissibly regulated) or public (and protected by the First Amendment). As the
State readily admits, where a silent and unseen device is used to record a telephone
conversation, the other party is unable to make any knowing and intelligent choice
regarding the giving of consent. State Br. at 14.
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 FIRST AMEND. 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. Independent of Ms. Melongos Conduct, the 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
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 may
bring a facial challenge against a statute, even though it is not
unconstitutional as applied to that particular party, because the
statutes very existence may cause others not before the court to
refrain 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 the 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
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 of
animal cruelty nowhere requires that the depicted conduct be
cruel. That text applies to any depiction in which a living
animal is intentionally maimed, mutilated, tortured, wounded, or
killed. 48(c)(1). [M]aimed, mutilated, [and] tortured convey
cruelty, but wounded or killed do not suggest any such
limitation.

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
28
the non-consensual recording of conversations regardless of whether they are
private, 720 ILCS 5/14-1(d), and thus covers conduct well beyond the statutes
purported interest in protecting privacy. And among the conduct swept up by
this blanket prohibition is much activity protected by the First Amendment.
In fact, as explained above, the broad sweep of the statute has allowed the
State to trample the rights of citizens to scrutinize the activites of its public
officials, thereby chilling core First Amendment activity.
The Eavesdropping Statutes infringement on protected conduct is
substantial. This is not a case where a single, impermissible application is
being cited in an effort to invalidate a statute. See Free Speech Coalition, 677
F.3d at 537 (quoting New York v. Ferber, 458 U.S. 747, 772 (1982)). Nor is Ms.
Melongo asking this Court to invalidate a narrowly drawn statute on the basis
of incidental, hypothetical restrictions on First Amendment activity that are
no greater than necessary to further the governmental interest at stake.
Williams, 235 Ill. 2d at 201. As set forth above, this Court need look no further
than the four other known people actually charged under the Eavesdropping
Statute who recorded non-private conversations with police officers and other
public officials to see that the law sweeps up substantial protected activity.
In sum, the Recording Provision of the statute is facially invalid under
the overbreadth doctrine because a substantial amount of activity involving
non-private conversations is barred.
D. The Publishing Provision Fails Intermediate Scrutiny.

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. An eavesdropping device is defined as any device
capable of being 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.
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
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-3A-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 the
crime even further. It provides as elements:

First Proposition: That the defendant used or divulged any information
obtained from a conversation; and
Second Proposition: That the defendant did so without the consent of
all parties to that conversation; and
Third Proposition: That the defendant knew or reasonably should have
known that this information was obtained through the use of an
eavesdropping device.

Simply put, the Publishing Provision itself does not confine the covered information
to conversations, nor does it contain an element of lack of consent.
32
determine whether it is constitutional, courts cannot read terms into the
language selected by the legislature). The Statute should be analyzed on it its
face, which, as explained above, outlaws dissemination of a significant array of
information no matter how it was gathered, and thus violates the First
Amendment.
This straightforward textual interpretation is also consistent with the
Publishing Provisions legislative history. Originally, the Eavesdropping
Statute made it a crime to use or divulge information known to have been
obtained through the illegal use of an eavesdropping device. Pub. Act 76-
1110 (eff. Aug. 28, 1969) (amending Ill. Rev. Stat. Chap. 38, Par. 14-2). In
1969, however, the legislature removed that requirement, making it a felony
to use or divulge any information obtained by an eavesdropping device,
regardless of whether the device was used to eavesdrop, regardless of consent,
and regardless of whether the eavesdropping device was used to listen in on or
record a private conversation. Id. The legislature plainly knew how to limit
the Publishing Provision in the manner contemplated by the current Jury
Instructions, but affirmatively chose to remove that limitation. This decision
is fatal to the statute. In re K.C., 186 Ill. 2d 542, 549 (1999) (Where the
legislature amends an existing statute, the presumption is that the legislature
intended a material change in the law.)
And even if the Publishing Provision could be construed as prohibiting
only the use of information obtained through the unlawful use of an
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. Melongos 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 First
Amendment rights to publish information about government conduct and the
administration of the criminal justice system deserves strong protection. See
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 unconstitutional, 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 peoples 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.
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 further 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.
36
II. The Eavesdropping Statute is Unconstitutional on its Face
Under the Due Process Clause of the United States and
Illinois 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
preventing the targeted conduct. Id. at 468 (citing Carpenter).
A. The Recording Provision of the Eavesdropping
Statute Fails the Rational Basis Test.

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

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 a
demonstrator marching in a public plaza in front of City Hall and
police officers trying to disperse the group or a competing group of
demonstrators arguing the opposing political position.
38

An excited supporter who records a candidate for President
discussing important issues with potential voters at a campaign stop
at Mannys Delicatessen.

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

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

A high school student who records a debate at a PTO meeting
between parents and his principal over banning certain library books
so 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 Eavesdropping Statutes definition of conversation did not
include statements made by speakers to the audience at a public event. However,
the court made clear that it did apply to conversations between individuals at public
events and any other exchange or mutual discourse as opposed to a statement or
declaration by one person alone. Id. at 924. Each of these examples reflects this
definition 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 Eavesdropping
Statute if it went ahead with a plan to audio and video tape teachers teaching students
in a special education classroom, absent express consent).
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 knowledge. 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.
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. 720 ILCS 5/16G15(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
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
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 States 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.
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. These cases are wholly inapplicable.
As a matter of law, the 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 found
unconstitutional on due process grounds because it did not require the state to prove
as a prerequisite the elements of simple arson i.e. an unlawful purpose in setting a
fire 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 an
accelerant was used).
44
And this is intentional. In Madrigal, the State urged this Court to
overturn the 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 implication
that the telephone calls she recorded were private and, therefore, that the
Eavesdropping Statute can be constitutionally applied to her. As explained in greater
detail above, Ms. Melongo recorded a conversation she had with a public official acting
in her official capacity about a matter of public importance. It was therefore a public
conversation in which Ms. Taylor had no privacy interest.
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
46
purpose of invading someones privacy. The Eavesdropping Statutes 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 Eavesdropping
Statute 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
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
48
capturing protestors and police debating their City Hall marching permit; the
supporters recording of statements made by the politician to a constituent at
Mannys; or the high school students recording of the debate at his schools
PTO meeting.
To survive rational basis review, the Publishing Provision must require
proof that a defendant used or divulged information he knew was obtained
with the purpose of invading someones privacy. And the Eavesdropping
Statutes express rejection of the relevance of this evidence in both the
Recording and Publishing Provisions is its fatal flaw.

III. Conclusion
The trial court was correct to strike down the Illinois Eavesdropping
Statute as unconstitutional and dismiss the criminal charges against Ms.
Melongo. For the reasons set forth above, the Recording and Publishing
Provisions of the statute are unconstitutional under controlling First
Amendment and Due Process jurisprudence.
This Court should strike both provisions in their entirety as
unconstitutional either under the First Amendment overbreadth doctrine or
under the Wick-Carpenter line of cases. Alternatively, because Ms. Melongos
conversation with Ms. Taylor, a public official acting in her official capacity
about a matter of public importance, was not private, this Court could elect to
strike down the statute as applied to similar non-private conversations with
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, 2013
Respectfully submitted,

ANNABEL MELONGO,
Defendant-Appellee

_________________________________________
One of the Attorneys for Defendant-Appellee


50
CERTIFICATE OF COMPLIANCE

I certify that this brief conforms to the requirements of Rules 341(a)
and (b). The length of this brief, excluding the pages containing the Rule
341(d) cover, the Rule 341(h)(1) statement of points and authorities, the Rule
341(c) certificate of compliance, the certificate of service and those matters to
be appended to the brief under Rule 342(a) is 49 pages.


Dated: December 6, 2013
_________________________________
Gabriel Bankier Plotkin


51
CERTIFICATE OF SERVICE BY MAIL


I, Gabriel Bankier Plotkin, an attorney, hereby certify that I filed with
the Illinois Supreme Court and served upon counsel the forgoing Brief of
Defendant-Appellee Annabel Melongo by enclosing copies thereof in
envelopes, addressed as shown, with first class postage prepaid, and
depositing them in the U. s. Mail Depository at 180 N. LaSalle, Chicago,
Illinois on December 6, 2013.

Lisa Madigan
Attorney General of Illinois
100 West Randolph Street
12
th
Floor
Chicago, IL 60601

Anita Alvarez
States Attorney of Cook County
309 Richard J. Daley Center
Chicago, IL 60602


Dated: December 6, 2013

Gabriel Bankier Plotkin



52
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, Illinois
entered March 2, 2012 .......................................................................... A-23-A34

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

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

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