Ninth Circuit Reverses Course, Says Oregon’s Surreptitious Recording Law Is Constitutional, Actually

As I noted when the Ninth Circuit Appeals Court handed down its original decision back in 2023, I didn’t care much for the plaintiff, but I did care quite a bit about the First Amendment. Less-than-ideal litigants make some pretty good caselaw, and that’s how it went here.

The plaintiff challenging Oregon’s surreptitious recording law was Project Veritas, a right-wing bunch of agitators that tends to rely on heavily edited recordings to prove whatever point it’s trying to make. But its tactics aren’t all that distinguishable from more credible forms of journalism. The same sort of thing is essential to whistleblowing. All that really separates Project Veritas from these other things is its general lack of ethics.

That being said, it raised a valid point in court. And, on appeal, the Ninth Circuit Appeals Court agreed with its allegations, finding that Oregon’s law against surreptitious recordings violated the Constitution.

Applying Animal Legal Def. Fund. v. Wasden, 878 F.3d 1184 (9th Cir. 2018), the panel held that section 165.540(1)(c) regulates protected speech (unannounced audiovisual recording) and is content based because it distinguishes between particular topics by restricting some subject matters (e.g., a state executive officer’s official activities) and not others (e.g., a police officer’s official activities). As a content-based restriction, the rule fails strict scrutiny review because the law is not narrowly tailored to achieving a compelling governmental interest in protecting conversational privacy with respect to each activity within the proscription’s scope, which necessarily includes its regulation of protected speech in places open to the public.

The dissent thought otherwise, claiming the law protected citizens’ right to “conversational privacy,” thus basically making Oregon a two-party consent state. More oddly, the dissent claimed the fact that surreptitious recordings could be shared more widely and quickly than when the law was first crafted was reason enough to ignore the obvious First Amendment implication of banning this form of subterfuge.

In other words, in Project Veritas’s view, having one’s oral communication secretly recorded imposes no greater burden on privacy than merely having the same comments heard—never mind that recorded comments can be forwarded to vast audiences, posted on the internet in perpetuity, selectively edited, presented devoid of context, or manipulated using modern technology.

But that’s always been the case with recordings. They can be manipulated, edited, and shared. That it happens more quickly now doesn’t really change anything.

Except that it apparently does. The Ninth Circuit reconvened for an en banc hearing and has flipped its own script. According to the court’s (extremely long) decision [PDF], the problem here isn’t any of these things necessarily. It’s the other thing: too much scrutiny.

That’s where the court decided it went wrong. It applied to high a level of scrutiny to something it has now chosen to portray as government speech, even though it’s really the opposite — a government incursion on free speech protections.

First, it says the law is content-neutral, in that it applies to the act of recording, rather than the contents of the recordings.

[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.”

While that’s true, it kind of sidesteps the reality of imposing this limitation on people engaged in journalism or whistleblowing, who will once again find these actions illegal. So, it does affect the messages a speaker “conveys,” even if it doesn’t directly affect the person doing the literal speaking when the recording is being made.

Having decided that, the Appeals Court lowers the scrutiny bar and finds it’s much easier for the law to clear it.

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….

It also says journalists for years have engaged in journalism without secretly recording people. And since they’ve been able to publish exposes without this form of personal intrusion, apparently it shouldn’t be an option for anyone. If people choose not to speak after being informed they’re being recorded, no one’s rights are harmed. It’s perhaps better put in the court’s citations (the claim that surreptitious recordings allow people to speak for others without their consent), but the end result is something that’s just going to lend itself to abuse by government officials, even if the law specifically contains some small exceptions excluding (some) public employees from being covered by this law.

The dissent sounds more like the original opinion delivered by this court.

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…

Unfortunately, this time around it’s the dissent and so it ultimately has no effect on Oregon’s law. Project Veritas is now back where it started. If it wants to challenge this, it will have to ask the Supreme Court to take a look at it. Given that court’s lack of interest in fielding cases, much less engaging in robust defense of certain constitutional rights, this might be a lost cause even with a plaintiff more than half the current justices probably approve of. After all, striking this law down just means some of their conservative buddies might be “victimized” by surreptitious recordings in the future. And that’s probably not a risk they’re willing to take.