People v. Melongo
6 N.E.3d 120
Ill.2014Background
- Annabel Melongo secretly recorded three telephone calls with Pamela Taylor, a Cook County court reporter supervisor, and posted the recordings and transcripts online. She admitted the recordings and posting.
- Melongo was charged under Illinois eavesdropping statute: 720 ILCS 5/14-2(a)(1) (prohibiting recording without all-party consent) and 14-2(a)(3) (prohibiting use/divulgence of information obtained via an eavesdropping device).
- At trial Melongo argued she fell within a statutory exception allowing recording when reasonably suspicious another party was committing a crime; the State sought to bar that defense as inapplicable.
- After a mistrial and subsequent motions, the circuit court found the eavesdropping statute both facially and as-applied unconstitutional (vagueness/overbreadth and lack of culpable mental state), relying in part on Seventh Circuit precedent in ACLU v. Alvarez.
- The Illinois Supreme Court heard the appeal and, guided by its contemporaneous decision in People v. Clark, evaluated First Amendment (overbreadth/intermediate scrutiny) and due-process (vagueness/notice) challenges to both the recording and publishing provisions.
Issues
| Issue | State's Argument | Melongo's Argument | Held |
|---|---|---|---|
| Whether recording provision (720 ILCS 5/14-2(a)(1)) violates the First Amendment | Content-neutral time/place/manner restriction; reasonably tailored to protect privacy | Provision is overbroad: it criminalizes recording of nonprivate/public speech and surreptitious vs open recording without justification | Recording provision is facially unconstitutional as overbroad under the First Amendment (fails intermediate scrutiny) |
| Whether recording provision violates due process (vagueness/lack of mens rea) | Statute contains culpable mental state (knowingly and intentionally) and is constitutional | Statute is vague, reaches innocent conduct, and lacks adequate standards | Court considered vagueness but grounded holding on First Amendment overbreadth; statute fails constitutional scrutiny |
| Whether publishing provision (720 ILCS 5/14-2(a)(3)) can lawfully prohibit divulgence of recordings | Instructional practice limits application to recordings obtained in violation of (a)(1); restriction targets the recording medium not content | Provision criminalizes disclosure by an innocent recorder and thus violates the First Amendment (Bartnicki principle) | Publishing provision invalidated as overbroad; cannot constitutionally prosecute an innocent party for divulging content when recording provision is unconstitutional |
| As-applied challenge: was Melongo's prosecution unconstitutional given she recorded a public official and posted recordings | State: Melongo knowingly recorded and published, so statute applies; no First Amendment issue for her conduct | Melongo: even as-applied, statute unconstitutionally restricts speech and publication of matters involving public officials | Court reached merits and held statute unconstitutional as applied and facially; Melongo cannot be prosecuted under these provisions |
Key Cases Cited
- American Civil Liberties Union v. Alvarez, 679 F.3d 583 (7th Cir. 2012) (First Amendment challenge to Illinois eavesdropping statute; persuasive circuit precedent)
- Bartnicki v. Vopper, 532 U.S. 514 (2001) (disclosure by an innocent party of unlawfully intercepted communications may be protected speech)
- United States v. Stevens, 559 U.S. 460 (2010) (overbreadth doctrine and invalidation when substantial number of statute's applications are unconstitutional)
- People v. Ceja, 204 Ill. 2d 332 (2003) (consent under Illinois eavesdropping statute may be express or implied)
- People v. Clark, 2014 IL 115776 (Illinois Supreme Court decision addressing similar First Amendment challenge to the eavesdropping statute; guided analysis in Melongo)
- City of Chicago v. Pooh Bah Enterprises, Inc., 224 Ill. 2d 390 (2006) (overbreadth doctrine and heightened vagueness standard where First Amendment rights implicated)