Project Veritas v. Michael Schmidt
To be published (2025)
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Rule of Law:
Oregon's conversational privacy statute, which mandates notice before recording oral conversations, is a content-neutral regulation that survives intermediate scrutiny because it serves a significant government interest in protecting conversational privacy, is narrowly tailored, and leaves open ample alternative channels for communication, thus not violating the First Amendment.
Facts:
- Project Veritas, a nonprofit media organization, primarily engages in undercover journalism, utilizing both open and secret audiovisual recordings to investigate matters of public concern.
- Project Veritas's journalists typically do not inform individuals that their conversations are being recorded, believing such announcements compromise their journalism by causing individuals to refuse to talk or distort their stories.
- Oregon Revised Statute § 165.540(1)(c) generally prohibits recording oral conversations if not all participants are specifically informed that their conversation is being obtained.
- Oregon's statutory scheme includes a "felony exception," allowing recordings during a felony that endangers human life, which was enacted in 1989 primarily to aid police in certain investigations.
- The statute also contains a "law enforcement exception," enacted in 2015, which permits open and plain-view recordings of conversations in which a law enforcement officer is performing official duties.
- Project Veritas intends to conduct various undercover investigations in Oregon, including secretly recording conversations with public officials (e.g., at public records offices) and police, and openly recording conversations with protesters, without providing explicit notice to participants.
- Project Veritas alleges that, but for Oregon's prohibition on unannounced audio recordings, it would investigate specific allegations of corruption and issues related to violent protests in Portland.
Procedural Posture:
- In 2020, Project Veritas filed a complaint in the United States District Court for the District of Oregon against Michael Schmidt, the Multnomah County District Attorney, and Ellen Rosenblum, the Oregon Attorney General, raising a First Amendment challenge to Oregon Revised Statute § 165.540(1)(c).
- Oregon moved to dismiss Project Veritas's complaint.
- The District Court granted Oregon's motion to dismiss in part, and the parties subsequently stipulated to the dismissal of the remaining claims.
- Project Veritas timely appealed the District Court's dismissal to the United States Court of Appeals for the Ninth Circuit.
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Issue:
Does Oregon's conversational privacy statute, which requires all participants to be informed before an oral conversation is recorded and includes exceptions for felonies endangering life and open recordings of law enforcement officers performing official duties, violate the First Amendment on its face or as applied to a nonprofit media organization engaged in undercover journalism?
Opinions:
Majority - Christen, Circuit Judge
Yes, Oregon's conversational privacy statute does not violate the First Amendment as applied to Project Veritas, nor is it facially overbroad. The act of making recordings in connection with newsgathering is indeed protected speech under the First Amendment, as restrictions on speech creation are seen as restrictions on speech itself, and speech on matters of public concern falls within the core of First Amendment protection. However, the court found the statute to be content-neutral, applying the framework from City of Austin v. Reagan National Advertising of Austin, LLC. This framework emphasizes that a regulation is content-neutral if its justification does not reference the content of the regulated speech and it does not discriminate based on viewpoint or restrict discussion of an entire topic. The felony and law enforcement exceptions are deemed to be based on the circumstances of the recording (e.g., during a felony, involving an officer performing duties openly) rather than the content of the conversation itself. Therefore, intermediate scrutiny applies. The statute survives intermediate scrutiny because Oregon has a significant governmental interest in protecting conversational privacy, fostering the uninhibited exchange of ideas, and allowing individuals to control their own speech, even in public settings where a limited expectation of privacy exists. This interest is significant because secret recordings are uniquely reliable and powerful methods of invading privacy, easily disseminated, potentially edited out of context, and raise concerns about deepfakes. The statute is narrowly tailored by requiring only notice, not consent, and includes reasonable exceptions for public and semi-public meetings and open recordings. Lastly, the statute leaves open ample alternative channels for Project Veritas, such as traditional investigative reporting methods like talking with sources, reviewing records, taking photographs, recording videos openly (without audio of conversations), and making use of freedom-of-information laws. The court also rejected the facial overbreadth challenge, concluding that Project Veritas failed to show that the statute's unconstitutional applications substantially outweigh its plainly legitimate sweep. Even if some exceptions were deemed content-based, they would be severable under Oregon law, as the general prohibition existed for decades before these specific exceptions were added.
Concurring - Bennett, Circuit Judge
I concur in the judgment that Project Veritas's facial challenge fails, but I write separately to clarify a crucial point. There is no historical or precedential foundation in the First Amendment or Supreme Court decisions (Zemel, Branzburg, Pell, Saxbe) to support the holding that the purely mechanical act of pressing an audio record button, either secretly or without announcement, is per se protected speech. Such an act is purely mechanical, conveys no message, and lacks the inherent expressive elements associated with activities like writing or painting. While acknowledging that some conduct can be related to speech, the First Amendment has limits on what actions qualify as protected speech, especially when there are important countervailing interests such as conversational privacy. A prohibition on secret or unannounced audio recording still permits a speaker to convey their message through other means (e.g., openly recording with announcement, taking notes, dictating after the conversation). Given that the act of pressing a record button is not categorically protected speech, Project Veritas's facial overbreadth challenge fails the demanding standard set by United States v. Hansen. Project Veritas has not demonstrated that any potential unlawful applications of the statute are substantially disproportionate to its overwhelmingly lawful applications, which protect a significant interest in conversational privacy.
Dissenting - Lee, Circuit Judge
No, Oregon's law violates the First Amendment. Even assuming intermediate scrutiny applies, the statute is grossly overbroad and not narrowly tailored to advance the state's interest in conversational privacy. The law criminalizes audio-recording conversations in public places where there is no reasonable expectation of privacy, such as a public official berating an employee at a Chipotle or uttering a racial slur on a public sidewalk, or even when the speaker notices a recording device. This goes far beyond protecting legitimate privacy interests and stifles essential modern news reporting and citizen oversight of newsworthy events. The government-mandated announcement requirement inevitably distorts the candid and authentic nature of conversations, and traditional alternative channels are an insufficient substitute for the unique evidentiary and communicative value of recorded speech. Furthermore, Oregon's inconsistent treatment of telephone calls (single-party consent is allowed) versus in-person conversations highlights the law's misalignment with its stated privacy interest. More critically, the law should be subject to strict scrutiny, not intermediate scrutiny, because it is content-based. The "law enforcement exception" singles out recordings of law enforcement officers performing their official duties for differential treatment, making them lawful without prior announcement, unlike recordings of any other public official or profession. This constitutes a content-based restriction because it targets a specific topic—law enforcement matters. Since Oregon concedes it cannot satisfy strict scrutiny, the law is unconstitutional. Finally, the law enforcement exception is not severable. Removing it would create a new constitutional deficiency by eliminating the recognized First Amendment right to record police officers in public, a result the Oregon Legislature would likely not have intended, especially given judicial precedent establishing that right.
Analysis:
This case significantly clarifies the Ninth Circuit's approach to First Amendment challenges against recording statutes, particularly in the wake of Reed v. Town of Gilbert and City of Austin v. Reagan National Advertising of Austin, LLC. It reaffirms that the act of creating speech is protected, but rigorously applies the content-neutrality test by emphasizing the government's purpose and the absence of viewpoint or topic discrimination, rather than a mere 'reading the content' trigger for strict scrutiny. The majority's robust defense of conversational privacy as a significant governmental interest, even in public settings, and its broad interpretation of 'ample alternative channels' may empower states to maintain one-party consent or notice-based recording laws, potentially impacting investigative journalism that relies on surreptitious recordings. This decision draws a line in the sand regarding the extent to which First Amendment protections extend to newsgathering methodologies involving clandestine recording.
