Oregon's Notice to Record Law Violates the First Amendment: Ninth Circuit | Practical Law

Oregon's Notice to Record Law Violates the First Amendment: Ninth Circuit | Practical Law

In Project Veritas v. Schmidt, the US Court of Appeals for the Ninth Circuit found an Oregon law prohibiting conversation recording without specifically informing individuals facially invalid as a content-based restriction that violates the First Amendment right to free speech.

Oregon's Notice to Record Law Violates the First Amendment: Ninth Circuit

Practical Law Legal Update w-040-0155 (Approx. 4 pages)

Oregon's Notice to Record Law Violates the First Amendment: Ninth Circuit

by Practical Law Data Privacy & Cybersecurity
Published on 06 Jul 2023 • USA (National/Federal)
In Project Veritas v. Schmidt, the US Court of Appeals for the Ninth Circuit found an Oregon law prohibiting conversation recording without specifically informing individuals facially invalid as a content-based restriction that violates the First Amendment right to free speech.
On July 3, 2023, in Project Veritas v. Schmidt, the US Court of Appeals for the Ninth Circuit found facially unconstitutional Or. Rev. Stat. § 165.540(1)(c), which prohibits obtaining or attempting to obtain conversations, defined in a way to include audio and video recordings, through any device without specifically informing all involved parties ( (9th Cir. July 3, 2023)). Section 165.540 includes specific exceptions to those prohibitions for recordings made during life-endangering felonies or involving law enforcement officers.
Project Veritas, a non-profit media organization that engages in undercover investigative journalism, including recording government officials and others during conversations held in public locations, alleged that Section 165.540(1)(c) and its exceptions create an unconstitutional content-based restriction of First Amendment-protected speech rights.
The Oregon Attorney General and the District Attorney of Multnomah County, Oregon argued that Section 165.540(1)(c) provides content-neutral speech regulation because:
  • The law's exceptions are not based on the words spoken and recorded.
  • State authorities do not have to listen to and analyze recordings to determine whether an exception applies.
Oregon also argued that the court could ignore the exceptions and consider the general prohibition on unannounced recordings as a stand-alone provision.
The district court partially granted Oregon's motion to dismiss for failure to state a claim, and the parties agreed to dismiss the remaining claims with prejudice. Project Veritas timely appealed. The Ninth Circuit reversed, first finding that Project Veritas's allegations were sufficient to establish standing for a First Amendment pre-enforcement claim because:
  • Project Veritas alleged that but for Section 165.540(1)(c), it would make unannounced recordings of conversations in a manner that would violate the general prohibition and gave specific examples of the categories of persons, conversations, and events it would like to record.
  • Oregon has:
    • prosecuted individuals for violating Section 165.540(1)(c); and
    • not stated that it would refrain from prosecuting Project Veritas for creating relevant recordings if they were made in violation of the law.
  • Project Veritas alleged a causal connection between Section 165.540(1)(c) and an inability to carry on its speech-related activities, and its injury is likely redressable by a favorable court decision.
On the substantive First Amendment challenge, the Ninth Circuit agreed with Project Veritas that Section 165.540(1)(c) and its exceptions contain content-based speech restrictions because their application plainly pivots on the content and activity recorded. The court further held that the speech restriction cannot survive strict scrutiny because:
  • Oregon does not have a compelling interest in protecting individuals' conversational privacy from others' protected speech in public places, even if that speech includes creating recordings of other people.
  • The law is not narrowly tailored to be the least restrictive or intrusive means of achieving the state's interests.
The Ninth Circuit noted that it was not persuaded by Oregon's argument that it could consider Section 165.540(1)(c)'s general prohibition without the exceptions because:
  • Its well-established precedent requires a court evaluating the constitutionality of a general prohibition to consider any exceptions.
  • Any exception to a general restriction on protected speech necessarily renders the restriction content-based.
In a lengthy and rigorous dissent, Judge Morgan Christen:
  • Warned of broad implications of invalidating the law if similarly applied to other states' surveillance and conversational privacy laws.
  • Assumed that the statute's exceptions created a content-based speech restriction but argued that the court should have:
    • severed the exceptions to the statute, regardless of whether Oregon raised the severability argument; and
    • applied intermediate scrutiny to the content-neutral remainder provisions.
The majority rebutted, noting that severing the exceptions would not render Section 165.540(1)(c) constitutional because it would:
  • Not leave open ample alternative channels for the at-issue protected speech.
  • Raise other constitutionality concerns.
The opinion is notable because its ruling could:
  • Be extended to certain surveillance laws in other states.
  • Open the door to other methods of undercover investigative journalism or analogous activities.