Court upholds ban on secretly recording conversations in Oregon
Michael Gennaro
SAN FRANCISCO (CN) — A Ninth Circuit Court of Appeals panel ruled Tuesday morning that an Oregon privacy law which requires the consent of all parties to record conversations is constitutional, finding that a federal court properly dismissed a conservative media outlet's claims the law tramples on the First Amendment rights of journalists and ordinary citizens.
“Oregon has a significant government interest in ensuring that its residents know when their conversations are recorded, the statute is narrowly tailored to that interest, and the statute leaves open ample alternative channels of communication for Project Veritas to engage in investigative journalism and to communicate its message,” U.S. Circuit Judge Morgan Christen, a Barack Obama appointee, wrote for the 10-2 majority.
Project Veritas, a conservative media organization known for its undercover work, filed its complaint in 2020. It claimed that the law, one of the strictest privacy laws in the nation, stopped its reporters from being able to secretly record conversations and expose public corruption and other wrongdoing.
The panel determined that the statue directly regulated Project Veritas’ speech but that there was nothing unconstitutional about it.
The privacy law has exceptions that allow recording without consent, such as when a felony that endangers human life is being committed, or a recording of a conversation with an on-duty police officer.
“Project Veritas fails to show that any unconstitutional applications of the conversation privacy statute substantially outweighed its constitutional applications,” Christen wrote.
A three-judge panel initially struck down the recording ban in 2023, prompting a rehearing en banc. At the en banc hearing in June, Project Veritas argued before 12 judges that the law needed to change to be consistent with modern technology and that a reporter recording a conversation was no different than a reporter taking physical notes on a notepad. Project Veritas also argued that the secret recording of one’s speech in public imposes no greater burden on privacy than having one’s speech heard out loud.
But Christen wrote that secretly recording someone presents different concerns than a third-party hearing a conversation and repeating it, as it can enable a party to disseminate a person’s oral comments in ways the speaker did not intend, violating what the U.S. Supreme Court calls the “principle of autonomy to control one’s own speech.”
“Recordings are uniquely reliable and powerful methods of preserving and disseminating information, but they are also uniquely reliable and powerful methods of invading privacy. Recordings may be made easily, stored indefinitely, disseminated widely and played repeatedly,” Christen wrote. “Recordings also may be selectively edited, presented without context, manipulated, and shared across the internet. Because an audio recording device reliably captures the sound that it detects, its usage may also create the illusion of objectivity, even where the recording omits critical context due to selective editing or recording.”
Christen added that the rise of artificial intelligence technologies now makes it easier than ever to make convincing deep fakes to fool listeners or readers.
At the hearing in June, Project Veritas asserted that it would only record in public spaces such as parks, coffee shops and cafes, so the speech it was recording could not be private speech, but the majority disagreed.
“Oregon’s significant interest in protecting private conversations includes private conversations that occur in public or semi-public locations. There is little doubt that ‘private talk in public places is common,’” Christen wrote.
Christen was joined in the majority by Chief U.S. Circuit Judge Mary Murguia, an Obama appointee; as well as U.S. Circuit Judges Kim Wardlaw, a Bill Clinton appointee, and Mark Bennett, a Donald Trump appointee, along with Jennifer Sung, Anthony Johnstone, Ana de Alba, Roopali Desai and Gabriel Sanchez, all Joe Biden appointees.
Two Trump appointed U.S. Circuit Judges, Kenneth Lee and Daniel Collins, dissented, writing that the Oregon law was overbroad and banned the taping of conversations where there was no reasonable expectation of privacy.
“The law should be subject to strict scrutiny, not intermediate scrutiny, because it is not content-neutral — it carves out an exception for law enforcement matters. The law cannot survive strict scrutiny because it is not necessary to serve a compelling interest,” the judges wrote in their dissent.
Benjamin Barr, counsel for Project Veritas, said in a statement to Courthouse News that Project Veritas intends to take the issue to the Supreme Court.
“Today’s ruling leaves undercover journalists with their hands tied in Oregon. The opinion upholds the broadest recording law in the nation. This law suffocates a reporter’s ability to investigate corruption and work with whistleblowers by requiring almost everyone in even the most public of places to warn others a recording will occur,” Barr said. “This ensures that the most informative, candid stories will never be captured in Oregon. It further erodes the role a free press should play in America by depriving it the most effective tool to hold those in power accountable to the people.”
Counsel for the state of Oregon did not immediately reply to requests for comment.