Ninth Circuit guts Oregon recording law

(CN) — Siding with a conservative media organization famous for its ambush and undercover work, the Ninth Circuit ruled 2-1 Monday that Oregon trampled the First Amendment in requiring consent to record public conversations.

“Oregon law generally prohibits unannounced recordings of conversations, subject to several exceptions,” U.S. Circuit Judge Sandra Segal Ikuta wrote in the majority opinion. “We conclude that Oregon’s law is a content-based restriction that violates the First Amendment right to free speech and is therefore invalid on its face.”

The statute at issue requires all persons of a conversation to be “specifically informed” for individuals to record public, in-person communications. Project Veritas, an organization dedicated to revealing supposed liberal bias in the media, filed suit over the law in August 2020, claiming the law limits the First Amendment rights of investigative journalists to engage in undercover newsgathering.

While Oregon is only one of five states that prohibit individuals from recording public conversations without notice or consent, most professional journalists identify themselves and inform their subjects if they are recording a conversation. Indeed, when it comes to the style of reporting favored by Project Veritas, the Society of Professional Journalists recommends in its Code of Ethics to avoid “undercover or other surreptitious methods of gathering information unless traditional, open methods will not yield information vital to the public.”

Oregon’s recording law did exempt those recording a conversation during a felony that endangers human life, and it permitted recordings of on-duty law enforcement. Another exemption covered instances where it’s evident that a recording is taking place, in circumstances where someone should have reasonably known a recording was being made or during phone calls if at least one person on the call knows that the conversation is being recorded.

Were it not for Oregon’s law, Project Veritas said it would investigate allegations of corruption” involving the Oregon Public Records Advocate and the Public Records Advisory Council.

“In 2019, Oregon’s Public Records Advocate resigned due to alleged pressure from or mismanagement by Governor Kate Brown,” the group wrote in its complaint, adding that it would have also investigated the “dramatic rise in violent protests in Portland between the police and members of Antifa and other fringe groups.”

“Because protests and even ordinary public life in Portland have proven dangerous to reporters,” the group explains, it fears that the safety and lives of its journalists would be endangered if it were to record conversations openly or inform participants of the recording. Outside of organized rallies, the group said it would do most of its secret recording in public.

Project Veritas went to the U.S. Court of Appeals in Pasadena, California, after the state won a partial dismissal of the case.

“Here, the state law at issue regulates individuals’ conduct in making an audio or video recording. Under our case law, such conduct qualifies as speech entitled to the protection of the First Amendment,” wrote Ikuta, citing Animal Legal Defense Fund v. Wasden, a case in which an animal rights group secretly filmed an Idaho dairy farm abusing its cows.

Ikuta notes that, at the outset, Oregon does not assert a compelling interest but argues that it has a significant interest in protecting individuals’ conversational privacy.

“In analyzing this interest, we are bound by Wasden’s conclusion that ‘the act of recording is itself an inherently expressive activity’ that merits First Amendment protection,” the George W. Bush appointee added. “Therefore, prohibiting a speaker’s creation of unannounced recordings in public places to protect the privacy of people engaged in conversation in those places is the equivalent of prohibiting protesters’ or buskers’ speech in public places for the same purpose.”

Ikuta also found that Oregon’s law is not narrowly tailored to be the least restrictive or intrusive means of achieving the government’s interest either. Tailoring is required for a law that regulates protected speech, as here. Because the law also distinguishes between topics by which subjects are restricted — the official activities of a state executive officer cannot be recorded without consent, but those of a police officer can — the law is additionally considered content-based, the court found.

U.S. Circuit Judge Morgan Christen wrote in dissent that Oregon adopted its law with a goal of ensuring that Oregonians would be free to engage in the “uninhibited exchange of ideas and information,” without fearing that their words would be broadcasted, disseminated or “worse, be manipulated and shared across the internet devoid of relevant context.”

Christen accused the majority of rewriting the state's articulated purpose for the law and recasting its interest as one in "protecting people’s conversational privacy from the speech of other individuals.”

That reframing, the Obama appointee wrote, “serves as the springboard for the majority’s reliance on an inapplicable line of Supreme Court authority that pertains to state action aimed at protecting people from unwanted commercial or political speech; not protection from speech gathering activities like Project Veritas’s, which are qualitatively different because they appropriate the speech of others.”

Christen also noted that the majority’s rationale contravenes that of the Ninth Circuit, which has explained that hidden mechanical contrivances are not indispensable tools of newsgathering.

“Investigative reporting is an ancient art; its successful practice long antecedes the invention of miniature cameras and electronic devices,” Christen wrote, citing Dietemann v. Time Inc. “Because modern technology now allows voice recordings to be manipulated and disseminated worldwide with a few keystrokes and clicks, the protection afforded by section 165.540(1)(c) is more important than ever. For all these reasons, I respectfully dissent.”

Follow @alannamayhampdx

Subscribe to Closing Arguments

Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.

Email *

Submit