thank you your honor may please the court time assistant attorney general eric levin on behalf of the people of the state of illinois i hope not to unduly repeat what the court just heard in fifteen minutes a fine argument from both of my colleagues i think i'm actually in a good situation here because i'd like to not having your private conversation secretly overheard or intercepted and the statute prevents that but it also prevents a distinct interest in the general somebody recognized this and that's the interesting without having even a public utterances be secretly recorded and in today's world instantly broadcast permanently irrevocably on the internet and in beards again harrington this court interpreted statute those are both statutory interpretation cases according to part of the statute in those cases as applying only to that former interest that i mentioned the interest in not being secretly overheard and recorded in the court said essentially if you speak if you  words in a situation where you know they can be overheard or in harrington if you're actually uttering it to a particular person you have no expectation of privacy in that fourth amendment sense against that person or against the people that can overhear your conversation but in reaction to those cases the general assembly came back and said no we're recognizing we recognize obviously that interest in private but also the distinct interest in the what i'm calling the interest against being recorded even when you're under conversations in public think judge posner made this point very well in his dissent in alvarez where he noted that even when people have conversations in public places if you're on the you're on a train in the city of chicago or if you're on a park bench even if you're standing outside of a courtroom in  hallway you have conversations with other people and you know they can be overheard you know obviously the person you're talking to can hear what you're saying but there's also that distinct interest you have in not having somebody secretly recorded what you're saying and then in today's world it with a push of a button that have that conversation on you tube or posted to facebook or what have you and so i think it's important to recognize both of these types both of these interesting conversational privacy and then i think that that helps us as we apply both the substantive due process of the system and the first amendment analysis and i think what's important to recognize here is in the substantive due process analysis we take a given that what the protect that's a legislative decision the judicial question which this court answered in those cases is in crafting a statute that went after those harms did the court do so in a reasonable manner and in cases like  carpenter and wick it clearly didn't i'm if for instance in madrigal that the court recognized a lot of goal of protecting against identity but the problem with the statute was that it criminalize such innocuous conduct is doing an internet search to see how your friend in the chicago america so clearly in that sense that's innocent conduct in the sense as this court later explained it hollins its conduct it is not in any way germane to the harm that the legislature was going after this case is fundamentally distinguishable that the general assembly here identified a particular harm that it wanted to address both the tradition of both in protecting the traditional reason we're expecting privacy and in protecting the interest against having your conversations be secretly recorded and it crafted to statute the of met the language in fourteen dash one d that directly address that language so in that sense for substantive due process purposes for this court's madrigal line of cases the statue sweeps in no innocent conduct the problem my opponent and some of the questions here today invoke certain hypotheticals what if for instance i think justice thomas asked what if somebody were to record a heckler in a  public place or a fight at a baseball game and my answer that question is for substantive due process purposes that poses no problem with this the question is not why there in particular instances the statute might be unconstitutional as applied for substantive due process purposes the question is whether the language the general assembly used is reasonably related to the legitimate evil it sought to address  those hypotheticals might raise in any case by case situation our first amendment issues or or any other particular constitutional right might come into play but i think most often these cases it's going to be a first amendment interest and so with that in mind i will turn here to the the two as applied first amendment challenges the first one of course is the the challenge to the count that charge of the senate with secretly and without the court's authorization recording court proceedings and here the defendant has produced not a single case where any court has held that there is a first amendment right to record court proceedings clearly public public officials doing their public jobs prior argument your honor i can't and i'm generally familiar with the case i can't say i'm perfectly familiar with with all of the circumstances in general certainly in the alvarez situation where you have a police officer and i'm talking about the public officials you just mentioned that recording someone who is a public official should be ok certainly generally speaking i'm not sure that a court reporter would fall into that public official category obviously that i think there are have to be degrees of public official and certainly the quintessential cases a government official who will be a great and immense government power the power to arrest somebody out i'm not sure that up at the supervisor quote reporters really carries that baptized of that back type of w y so obviously i think battle presents a more difficult question i think here we don't have the difficult questions here quite rooms have always been different this court rules prohibit recording equipment to talk without this court's prior permission and obviously now the court has a pilot program for extended media coverage and i i believe kane county is part of that but even under that program the recording has to be done with the court's permission this court has never allowed secret in unauthorized recordings of court proceedings i think this far as i'm more courts across the country and for time immemorial have prohibited recording devices in courtrooms courtrooms are just a unique situation both for the courtroom integrity purposes and for the fact that many people are private citizens in courtrooms who don't ask to be there they have to be there you know that it could be recorded now absolutely and i'm aware of that and that's been done with the court's permission at the court's direction i think it would be different if somebody in the audience right now were recording i think the court might view that differently or certainly in a court room where the court wasn't itself recording if it's somebody without the court's permission or recording and running here the defendant here not only recorded the judge who you know just a straight comment jurors out a bailiff etc and so i can for that sort of explains why courts have always been different and why rob courtrooms are certainly open to the public the right to record in courtrooms has never been well i think that here the defendant but well have only raised as applied to person that challenges and so the question under and as applied first amendment challenges is the particular conduct of the defendants charged with protected by the first amendment of course in the first minute context there is the need doctrine of over prop which doesn't apply to other areas but here the defendant i think concedes and in his response brief that that argument was not presented below clearly the circuit court didn't address it and the supreme court's repeatedly said that striking a statue down is being facially overbroad a strong medicine it should read it should be employed sparingly and i think certainly in a case where no record below is made on it no argument we have no decision from the circuit court on it we would urge the court not to consider that here i just not the proper vehicle for addressing that we think it's the proper vehicles to address as applied challenges and obviously in a in a in a later case  example after example of what may be deemed to be innocent conduct and just use your position that that is an innocent conduct or that wouldn't fall under the statute or i think my position is i think you have to look at the particular conduct and i think some of true but i think stevens and the other over back cases make clear that it has to be a substantial amount of unconstitutional applications judged in relation to the legitimate sweep of the statute and i think that's and then you've heard the arguments before with respect to the technology of the day and everybody having a camera in their pocket in their phone and you tube videos and on and on and i went back and i think that gets to the point of i think there were dealing with policy questions clearly  arrest type of situation where there are core first amendment issues at stake it's the first amendment trumps and it takes that out of the hands of the people but in your vast majority of cases where for instance here in count two where you're dealing with a private attorney in the whole room of a court way who that the trial court sad very likely that the conversation is private in those types of cases where on the one hand you don't have those core first amendment issues that you had an  her circuit case and on the other hand you do you have privacy interests on the side of the people being recorded that you don't really have in the alvarez case in in that middle ground those those vast majority of cases it's really an issue of policy for the people to work through how are we going to address this new technology that's been continually emerging and proliferating and that just making today's world fundamentally different than it was twenty years ago where now every convert anything uttered in public essentially we have the technology to record it and to instantly publish it worldwide and that level mr richard could be written though in such a way that those examples that we've been talking about would not come under the stairs or i think i would agree with that i think to do i'm sure that the legislature would attempt to go back to the drawing board was they have to recognize unlike certain other states don't currently protect this in this distinct interest in not being recorded they only they do only protect that interest in not having your conversation be overheard illinois taken a different tack and and made that policy decision to protect that distinct interest and so i do think the legislature likely would go back to the drawing board whether they could come to agreement on any particular language i i we're trying to get out before i think the evolving technology is no doubt has its benefits i mean we see in syria and in revolutions across the world the openness and the ability to record events as they happen and then to instantly publish them has great benefits for society but i think we also can't close our eyes to the fact that there are very serious harms to privacy prevented by such technology and i think here as i said in the  or in the hypothetical that my opponent raises where there's a loud political debate happening in a public's square where the first amendment steps in with that or interest then as applied the statute  unconstitutional but in that vast majority of cases where you don't have those interests this is really a policy question that many people have to work through through their elected officials in determining how do we want to best balance these interests and so i can just briefly touch on the as applied challenge to the core recording i think the the as applied challenge in the holly recording i think presents an even easier analysis there there's no doubt well the trial court even went so far as to say that it's very unlikely that that attorney talk the conversation she was having with the defendant was not private but there is certainly no indication that she thought the conversation was being recorded and so there we have a stark example of this interest and even though she was she had no reason to expect patient privacy against the defendant that traditional sense she still had that expectation that what she was saying wasn't being recorded imagine if any conversation a lawyer had with an opposing counsel or an unrepresented party in a hollywood courtroom could be recorded it would be very chilling to the ability of people to have frank off the record conversations settlement negotiations etc and i think this people can overhear you but they're not really listening to you or if they are it's going to be forgotten but if that conversation could be secretly recorded and then in the push of a button it's on you tube for the world to see that's that's a really different thing and i think people feel it just on a on a subconscious level that's a different type of interest involved and the general somebody here wanted to protect against that and they dropped to the statute that did just that if there are no further questions i will save any of my further time for two competing societal values one being the gathering of information for the purpose of now legit truth freedom of speech and press and then we have the right to privacy this is not new that this clash occurs on occasion but sometimes the legislature in drafting a law swings the pendulum too far and takes away from one right too much and places too much on the other side that's what's happened in this case because we understand that the gathering of information that's publicly displayed or from public officials and not expected to be kept private that gathering of information is fundamental and represents the quarter stone the beginning of our freedom of speech and press  institutional press as such but of the ability of all of society's members to trade information i was not sure if i wanted to mention plato's allegory of the cave and the essential idea in the human race that we strive for total naledge and wisdom but audio recording is the most reliable indicator of truth and truth is wisdom and wisdom is now and this is where our society takes us technology is running fast and where truth will lead us and where total wisdom will lead us is difficult to predict but a law that outlaws an entire form of capturing information cannot stand in a free society this is what this law does by banning all audio recording of any or communication regardless of whether it's intended to be private or is overbroad it burdens our freedom of speech and press there is no doubt that the statutes purpose here is where we start with the analysis no one disputes that in any of the two cases today that the purpose of the statute is conversational privacy the moment that element was removed from the statute the statute failed it's not merely tailored to accomplish their purpose because it punishes conduct which has no relationship to privacy and hence it by elites to promises it violates freedom of speech and press by failing to be narrowly  accomplish a significant government purpose while leaving open ample alternative channels for communication of that information now i hear the word surreptitious i would remind the court that katz is the cornerstone of what is public what is private in the united states supreme court jurisprudence and what is made public is not private what can be watched we walk down the street every day i understand the attorney general feels that everyone should be placed on notice when they're being recorded but somehow we have the right to know that but we know we don't have the right to know we're being video recorded or surveyed when we walk down the street we don't have the right when we're in a public place to choose to limit who gets to  repeat what we speak to them once we speak in public at a level that can be overheard we've lost all right to claim privacy because privacy doesn't say i'm going to choose one justice who may repeat it another justice who may not see if you help me to get a very broad statement you just made yes that any statement in public that is loud enough to be overheard is a public statement not a private thing yes that's your position yes can you give me a definition of what you think is a private statement a whisper that would be a private statement in public where by the way the by the way your voice is offered to the listener is would be clearly that would be a reasonable expectation of privacy our human relations understand the concept of a whisper i think if somebody were a third party were to try to lean in in a conversation invade social button spaces you will or use a device to enhance the he but i would suggest that there might be conversations you could have in a business setting that would be considered private because they were trade secrets they were about the operation of the business it would be the based primarily on the content and what the intent of the speaker was and the intent of the list certainly when you are outside of you're on the street or you're relating to a public official there can think of a much that remains private when you speak loud enough for even a complete stranger to hear you now in mr clarke's case and in many of them the interesting thing is no one claims that what was spoken is inadmissible in court or cannot be repeated no one is claiming that when mr clark was in court that the things that were sent are incapable of ever being repeated again you don't want to saying that the things that were said between mr clarke and ms thomas incapable being repeated again are you saying that the means of the poor are not private that is correct i speak to another person and tell them something i may wish that they not repeat i may have that in mind but there's nothing that restricts another person from repeating it again the only thing that an audio recording does is ensure that if it is repeated it will be repeated in its most accurate sense only the only thing an audio recording does is prevent a sharp lawyer for example from criticizing the memory of the person who repeats it again and suggesting that person's memories no one has the right to have an inherent ability to impeach a witness by saying that their memories faulty simply preventing them from recording what effected in court we would probably wish as lawyers and purpose to arrive at the truth that we would always have an audio recording of what was spoken when a dispute is in play this is just not necessary to the actual ruling that we're asking your honour's to make in this case but the concept is that when the statute is so abroad that it fails to define in any way shape or form what a reasonable expectation is or to limit reasonable expectation of privacy that it just reaches too far in order to accomplish one goal and takes too much from the other i believe that this is a very simple case in that regard but i also want to point out that i think it would be difficult for this court to try and parse out what parts of the statute to take away and what parts to leave in in order to try and say pieces of the statute because we don't know what the legislature would want to do if parts of this were found unconstitutional maybe the legislature would decide that they would now prefer a one party consents and maybe they would revisit the entirety of the statute and we would no longer be considered a national outlier when it comes to eavesdrop and so the debate may change in terms of the given the take i also want to point out that there's other problems with the statute which include speaker discrimination the fact that the police can record a conversation with a defendant but the defendant cannot record the same conversation is speaker discrimination and by itself is a violation of the first amendment because of that purpose speaker discrimination is like con discrimination where strict strict scrutiny needs to be applied and overall that doesn't own isn't necessary because we believe even though the rational basis test the statu would simply ask and i do want to comment on this that was expecting a question about whether or not the court felt that mr clarke's recording inside the courtroom was problematic drop stanchions i don't believe personally and it's really not necessary to the resolutions case that the simple recording of it takes place in court is a violation of that eavesdropping statute it may be a violation of a court procedure i know there's cases out there that have said several times no one has the right to audio record what takes place in a court but th the exception of those cases was where there were long cables running all over the place giant television cameras photographers running up to witnesses taking their photographs this is not the world that we live in down in mr clarke's case what he did and there's no evidence to the contrary was not a distraction to the courtroom and he was a party to the conversation i understand the court has the right to control the  quorum whether or not what he did or did not do violate steak or um is it different creature but it isn't a violation of these drop in statute because it was a public to get he settled there's a public station if you took place in an open court room as mr clarke's did that would be problematic for took place in the privacy of the conference room matters of settlement remain confidential but this was in an open public orbit not close to the public so what he recorded was never intended to be private and his recording of it was not disrupt and there were no other ample means afforded see him to obtain the information other than i guess his memory or a higher court record or higher in a court reporter which is a an expense that i would point out pro se defendant to child support case may not be able to sustain equally true is he was not recording it for a nefarious purpose it may have been disruptive it have violated court rules i'm not here to speak to that directly that would be up to a later court to decide if it's ever brought up in that way but he was not taking it you know many court rooms do have procedures that move so rapidly that certainly in a criminal court jim you may have witnesses that are intended to have their faces displayed and things of that nature third parties may not have the right to come in and record the events certainly i think the court may need to make it clear that there are other ways to obtain try to foist a recording into the courtroom there was no electronic recording system in place there was no court reporter provided and the local rules of the court house did not prohibit him from bringing in the equipment maybe that's where that should have gone i checked they don't have such rules clearly the supreme court has rules but those rules about pretty recording were not posted anywhere either so i think there's room for improvement in that regard as well thank you thank your honor just a few brief points my posing counsel says that this case is about a clash between two competing societal values and i absolutely agree with that as i said in my opening there's no doubt that the emerging technology has great benefits for society but we also have to recognize that it comes with some serious privacy concerns and that the normal the the the body that normally deals with  balancing competing societal concerns is the general assembly my own it makes the argument and and it's the defendant's view that anything uttered in public is subject to being recorded because under the fourth amendment reasonable expectation of privacy test the person could have no expectation that the conversation couldn't be overheard but that's a policy question and the general assembly here quite clearly in responding to beardsley and harrington identified a distinct harm in having even a public conversation secretly recorded and it's up to protect against i think also the defendant's argument here essentially would mean that every court rule across the country that bans recording without the court's permission is unconstitutional and i think it would even go further than that quite startlingly i think the defendant against them in the fourth amendment sense you certainly have an expectation that there's nobody hiding outside the door that's overhearing you but you can't be said to have any expectation that the people you're talking to are not overhearing you in that situation it would be unconstitutional to prohibit somebody from secretly recording those conversations whether or not that's a good policy is not the question presented by this case it's whether or not the policy that the general assembly adopted which prohibits that type of recording is unconstitutional and as i said in certain cases on a case by case basis the first amendment or another constitutional pretty provision very my might well come into play i think the alvarez case is a perfect example of this might come into play and prohibit the application  statute but in the vast majority of cases where you don't have those types of interests involved and where you do have very serious privacy interests at stake the question of whether or not or how we want to strike this balance and how we want to deal with this emerging technology is a question for the general assembly to decide