9th Cir. En Banc Upholds Oregon’s Ban on Surreptitious Recordings of Conversations
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
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