An excerpt from yesterday’s en banc decision, written by Judge Morgan Christen, in Project Veritas v. Schmidt (reversing the July 2023 panel decision); the full opinions are over 20,000 words long, so this just gives a flavor of the analysis:
Oregon’s conversational privacy statute prohibits unannounced audio-only recordings of oral communications between two or more persons, and the audio portion of audiovisual recordings of oral communications. It does not address video-only recordings or photographs.
Oregon’s general prohibition on unannounced recordings of face-to-face conversations has several exceptions, but Project Veritas focuses its challenge on two of them. The first, the felony exception, allows a person to “record[ ] a conversation during a felony that endangers human life.” … The second, the law enforcement exception, allows a person to “record[ ] a conversation in which a law enforcement officer is a participant” if certain conditions are met. The recording must: (1) be “made while the officer is performing official duties”; (2) be “made openly and in plain view of the participants in the conversation”; (3) capture a conversation that is “audible to the person by normal unaided hearing”; and (4) be made from “a place where the person lawfully may be.” …
The court concluded that the statute “regulates speech protected by the First Amendment”:
It is well established that audio recordings and audiovisual recordings are generally entitled to First Amendment protection….The Supreme Court has recognized that “[w]hether government regulation applies to creating, distributing, or consuming speech makes no difference.” Moreover, the Supreme Court has expressly applied First Amendment protections to speech-creation processes….
We do not suggest that any conduct related in some way to speech creation, however attenuated, is necessarily entitled to First Amendment protection. A law that regulates logging may incidentally raise the price of paper used to write a manuscript. A law that regulates mining silica sand may incidentally raise the price of microprocessors used to facilitate the writing of an electronic article. It is certainly not obvious that the First Amendment would invariably provide protection for activities like these, where burdens on speech are merely incidental….
[But a]t the pleading stage, we accept Project Veritas’s assertion that giving notice to conversation participants that they are being recorded may alter the contents of conversations in which Project Veritas’s reporters participate. Accordingly, we accept that Oregon’s conversational privacy statute burdens an act of speech creation in which Project Veritas seeks to engage. Protection for this act of speech creation is implicit in any right Project Veritas has to publish the resulting recording….
But the court concluded that the Oregon statute was content-neutral:
[The statute] does not “draw[ ] distinctions based on the message a speaker conveys,” and it was not adopted because of the government’s “disagreement with the [speaker’s] message.”
And this was so despite the exceptions:
We start with the felony exception, which applies when a conversation is recorded “during a felony that endangers human life.” This exception does not address the content of the audio recording. The plain language of the statute dictates that its application turns on when a recorded conversation occurs, and not the subject matter of that conversation. The conversation need not relate to the felony; indeed, it could encompass any content whatsoever….
We reach the same conclusion when considering the law enforcement exception. This exception applies to recordings of conversations “in which a law enforcement officer is a participant,” provided certain other conditions are satisfied. Like the felony exception, this exception is not content based within the meaning of controlling First Amendment precedent…. It does not concern a “particular viewpoint[ ]” or prohibit discussion of “an entire topic.” The exception … applies to conversations that involve law enforcement officers, regardless of what the conversation is about. Put another way, it draws a line based on the circumstances in which a recording is made, not on the content of the conversation recorded…. It does “not inherently present ‘the potential for becoming a means of suppressing a particular point of view.'”
The court then went on to uphold the law under the “intermediate scrutiny” applicable to content-neutral regulations:
To survive intermediate scrutiny, a content-neutral regulation of speech must be “narrowly tailored to serve a significant governmental interest, and … leave open ample alternative channels for communication of the information.” …
[1.] Oregon argues that it has an important interest in ensuring that its residents know when their conversations are being recorded. We easily conclude this is a significant governmental interest…. Where one “impart[s] information to strangers, one inevitably risks its secondhand repetition,” but “there is ‘a substantial distinction between the secondhand repetition of the contents of a conversation and its simultaneous dissemination to an unannounced second auditor, whether that auditor be a person or a mechanical device.'” In a world where one knows that any conversation can be secretly recorded at any time, and subsequently disseminated, it is easy to imagine that there might be a deleterious effect on the “uninhibited exchange of ideas,” and a pervasive “chilling effect on private speech.” … If all that is heard may be recorded, such a regime “might well smother that spontaneity—reflected in frivolous, impetuous, sacrilegious, and defiant discourse—that liberates daily life.” …
Oregon’s interest in conversational privacy also extends to ensuring that its residents retain control of their own speech. A party’s “secret monitoring denies the speaker an important aspect of privacy of communication—the right to control the nature and extent of the firsthand dissemination of his statements.” A secret recording may enable a party to disseminate another’s oral comments in a way the speaker did not intend. Appropriating another’s speech implicates what the Supreme Court has described as the “principle of autonomy to control one’s own speech.” “The First Amendment securely protects the freedom to make—or decline to make—one’s own speech,” and “it bears less heavily when speakers assert the right to make other people’s speeches.” Oregon’s statute “directly enhance[s] private speech” by allowing individuals to choose not to speak, and thereby protects the “freedom not to speak publicly.” …
[2.] The next step is deciding whether Oregon’s statute is narrowly tailored to its significant interest. We conclude that the statute is sufficiently narrow….
To further its interest in preserving conversational privacy, Oregon adopted a relatively modest notice requirement. Absent an applicable exception, Project Veritas must inform participants in a conversation that they will be recorded before initiating a recording. Keeping the purpose of the statute in mind, section 165.540(1)(c) is exceptionally well tailored to protecting Oregonians’ private conversations. By requiring that participants in a conversation be informed before an audio recording begins, but not requiring that they consent to the recording, the statute minimizes the infringement upon Project Veritas’s journalistic efforts while still protecting the interviewees’ right to knowingly participate in Project Veritas’s speech—or not. Once a person is on notice that she will be recorded, she may choose to speak or remain silent. Either way, a noticed recording does not violate a privacy interest. Moreover, consistent with Oregon’s interest in conversational privacy, the statute does not sweep in photography or video recordings; it applies only to recordings of face-to-face oral communications.
Oregon’s statutory scheme is well tailored because it also accounts for some settings in which people cannot reasonably expect not to have their oral statements recorded…. These exceptions permit open recordings at public gatherings, including protests, and private meetings in which participants should reasonably expect that they will be recorded….
[3.] We are also persuaded that section 165.540(1)(c) leaves open ample alternative channels of communication for Project Veritas to engage in investigative journalism and to communicate its message.
It is well established that an alternative channel need not be ideal, but merely adequate. “[T]he First Amendment does not guarantee the right to communicate one’s views at all times and places or in any manner that may be desired.” The Supreme Court “generally will not strike down a governmental action for failure to leave open ample alternative channels … unless the government enactment will foreclose an entire medium of public expression across the landscape of a particular community or setting.”
A restriction runs afoul of the “alternative channels” requirement if it eliminates the only method of communication by which speakers can convey their message to a particular audience. But a regulation does not fail intermediate scrutiny merely because the other available channels of communication would convey the same message somewhat less conveniently or effectively. An alternative channel is adequate if it “permits the more general dissemination of a message.” …
Project Veritas retains numerous alternative channels to engage in its journalistic speech activities. It may employ all the traditional tools of investigative reporting, including talking with sources, reviewing records, taking photographs, recording videos openly during public and semi-public meetings and events, recording videos that do not capture oral conversations, recording conversations after announcing it is doing so, and making use of Oregon’s freedom-of-information laws.
Project Veritas may have its reporters go undercover and report on what they have seen and heard—without secretly recording its targets—as journalists have done for centuries. Powerful exposés authored by people like Nellie Bly, Gloria Steinem, and John Howard Griffin clearly demonstrate what our court has long recognized: “hidden mechanical contrivances” are not “‘indispensable tools’ of newsgathering.” Dietemann v. Time, Inc. (9th Cir. 1971) (rejecting the argument that the First Amendment accorded journalists immunity from invasion of privacy torts). These many approaches to traditional investigative reporting remain available to Project Veritas and they satisfy the alternative-channels requirement….
[In its overbreadth argument,] Project Veritas makes passing references to other applications it contends are unconstitutional—e.g., recording a loud argument on the street or a political provocateur on a subway. The dissent does the same, imagining a public official berating a Chipotle employee or uttering a racial slur on a sidewalk. But even assuming that these examples qualify as face-to-face conversations within the meaning of section 165.540(1)(c) and that the statute is unconstitutional as applied to them, “the ratio of unlawful-to-lawful applications is not lopsided enough to justify the ‘strong medicine’ of facial invalidation for overbreadth.” …
Judge Mark Bennett concurred in the judgment; a brief excerpt:
In 2018, when evaluating the creation of audiovisual recordings, we declared that “the recording process is itself expressive,” meaning that “the creation of audiovisual recordings is speech entitled to First Amendment protection as purely expressive activity.” Animal Legal Def. Fund v. Wasden (9th Cir. 2018). The breadth of that statement is rooted neither in the history of the Free Speech Clause of the First Amendment nor in any decisions from the Supreme Court….
Even when conduct relates to speech, Supreme Court cases counsel that that conduct may not be speech protected by the First Amendment, particularly when the regulation of such conduct still permits the speaker to express his desired message and there are important countervailing interests.
For example, in Zemel v. Rusk (1965), the appellant claimed that the Secretary of State’s “refusal to validate his passport for travel to Cuba,” because of the United States’s breaking of diplomatic ties with Cuba and implementation of a travel ban, “denie[d] him rights guaranteed by the First Amendment.” This was allegedly so because the travel ban “direct[ly] interfere[d] with the First Amendment rights of citizens to travel abroad so that they might acquaint themselves at first hand with the effects abroad of our Government’s policies, foreign and domestic, and with conditions abroad which might affect such policies.” Although the Court acknowledged that the ban did burden the free flow of information, it did not implicate the First Amendment because the ban was ultimately “an inhibition of action.” The Court observed:
There are few restrictions on action which could not be clothed by ingenious argument in the garb of decreased data flow. For example, the prohibition of unauthorized entry into the White House diminishes the citizen’s opportunities to gather information he might find relevant to his opinion of the way the country is being run, but that does not make entry into the White House a First Amendment right. The right to speak and publish does not carry with it the unrestrained right to gather information.
In Branzburg v. Hayes (1972), the Court relied on Zemel and held that requiring journalists to testify before grand juries did not violate the First Amendment—even though “news gathering may be hampered” by the requirement…. [Branzburg] established that the regulation of some conduct—even when it may impact speech—simply does not implicate the First Amendment, particularly when the speaker is still allowed to express his desired message and the regulation is needed to protect important countervailing interests….
These cases support that all secret or unannounced audio recordings cannot be per se protected speech under the First Amendment, even if some of those acts of secret or unannounced recording could be indirectly linked to speech. First, we know that, even if the act of recording might be related to speech, the act itself does not automatically qualify as protected speech. There must be limits. See Zemel. We have expressed this sentiment. Dietemann (“The First Amendment is not a license to trespass, to steal, or to intrude by electronic means into the precincts of another’s home or office.”).
Second, a prohibition on secret and unannounced audio recording permits a speaker to use other means of “capturing” the audio contents of a conversation. He can still record, so long as he announces that he is doing so. And, without any announcement, he can still write or type notes during the conversation; he can still write or type notes immediately after the conversation; and he can still dictate the contents of the conversation using a recording device after the conversation. The prohibition on secret and unannounced audio recording also does not restrict his ability to communicate the information that he obtained from the conversation.
Finally, there is a strong countervailing interest protected by the regulation of secret or unannounced audio recording: the interest in maintaining the privacy of communication. “Privacy of communication is an important interest,” as it “encourage[es] the uninhibited exchange of ideas and information among private parties.” Indeed, “[t]here is necessarily, and within suitably defined areas, a concomitant freedom not to speak publicly, one which serves the same ultimate end as freedom of speech in its affirmative aspect.” …
Given these considerations, the secret or unannounced audio recording of all conversations is not per se protected speech under the First Amendment. Thus, neither the text or the history of the First Amendment, nor Supreme Court precedent interpreting the Free Speech Clause, supports that the act of pressing an audio record button to record all conversations—either in secret or without announcement—is per se speech protected by the First Amendment. Our precedent also offers no persuasive reason to conclude otherwise….
Judge Kenneth Lee, joined by Judge Daniel Collins, dissented:
Journalists, as well as regular citizens, routinely record the powerful and the privileged behaving badly. Today’s decision imperils the right to capture such abuses of power and other newsworthy events.
Oregon does not just ban surreptitious recordings that may implicate privacy concerns: It also criminalizes audio-recording someone—even conversations in public with no reasonable expectation of privacy—if “not all participants in the conversation are specifically informed that their conversation is being obtained.” So, for example, a citizen in Oregon cannot lawfully audiotape a public official berating an employee at a Chipotle or uttering a racial slur on a public sidewalk—unless that citizen expressly tells that official he is being recorded….
Oregon’s law is grossly overbroad and not narrowly tailored to advance the state’s interest in conversational privacy (even assuming intermediate scrutiny applies). Oregon prevents citizens from recording even in public areas if they do not announce that they are audiotaping. Oregon thus tramples on people’s ability to record and report on a large swath of public and newsworthy events. And because the law bans the taping of conversations where there is no reasonable expectation of privacy, Oregon’s statute is not narrowly tailored to further the state’s interest in conversational privacy.
In any event, Oregon’s law should be subject to strict scrutiny, not intermediate scrutiny, because the statute is not content-neutral. The statute has a law-enforcement exception that allows citizens to legally record law enforcement officials—but no one else—without announcing that they are recording them. Oregon has essentially carved out only law enforcement matters from its ban on unannounced recording. Because this is a content-based restriction, strict scrutiny applies—and Oregon’s law must fall to the wayside….
Oregon’s law-enforcement exceptions are necessarily content-based because they “single out a[ ] topic or subject matter”—law enforcement—”for differential treatment.” By its plain language, the statute allows citizens to record—without making an announcement—a police officer performing his or her official duties. No similar exception exists for any other profession or field. It is unlawful for citizens to tape (without an announcement) elected officials, schoolteachers, public housing agency administrators, environmental services employees, tax collectors, department of water and power representatives, child welfare investigators, and anyone else. But it is lawful to record law enforcement officials—and only law enforcement officials—without any announcement. {Oregon’s law thus may not just be content-based but also viewpoint-based, because critics of the police are given a speech tool that the statute denies to critics of other officials.}
The majority argues that the statute is not content-based because “the requirement in § 165.540(5)(b) that a law enforcement officer be involved in the conversation does not regulate a ‘topic’ because the statute is unconcerned with the content of the conversation in which an officer participates.” That assertion defies common sense and the statutory language. That is like saying that a law that bans Hollywood from featuring law enforcement officers—or anti-police brutality activists—in its movies is not content-based because it does not regulate a specific topic or conversation in the movie. The whole point of the statutory exception is to carve out law enforcement as a subject matter by allowing citizens to tape officers during their official duties without making an announcement….
The content-based nature of Oregon’s law becomes even clearer if we consider other analogous scenarios. Assume Oregon enacts a similar carve-out for labor union officials—it is lawful to record a labor union official while he or she is “performing official duties” (but nobody else). It would be obvious that the law is content-based, i.e., topics pertaining to labor unions are treated differently from other topics. Or assume that Oregon bans non-consensual audiotaping except that citizens can lawfully record officials at the University of Oregon’s Division of Equity and Inclusion who are “performing their official duties.” Such a distinction would be content-based, as it treats some topics differently from others. We would not say such a law is not content-based because “the statute is unconcerned with the content of the conversation in which [a labor union official or DEI personnel] participates.” …
Benjamin N. Gutman, Philip M. Thoennes, and Michael A. Casper represent defendants.
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