The Volokh Conspiracy
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9th Cir. Invalidates Oregon's Ban on Surreptitious Recordings of Conversations
From Project Veritas v. Schmidt, decided Monday by a Ninth Circuit panel in an opinion by Judge Sandra Ikuta, joined by Judge Carlos Bea:
Oregon law generally prohibits unannounced recordings of conversations, subject to several exceptions [including for recordings of law enforcement and for recording various crimes that endanger human lives]. We conclude that Oregon's law is a content-based restriction that violates the First Amendment right to free speech and is therefore invalid on its face….
"While the First Amendment literally forbids the abridgment only of speech, the Supreme Court has long recognized that its protection does not end at the spoken or written word." We have recognized there is no material "distinction between the process of creating a form of pure speech (such as writing or painting) and the product of these processes (the essay or artwork) in terms of the First Amendment protection afforded." Indeed, "we have never seriously questioned that the processes of writing words down on paper, painting a picture, and playing an instrument are purely expressive activities entitled to full First Amendment protection." …
Here, the state law at issue regulates individuals' conduct in making an audio or video recording. Under our case law [and that of other circuits], such conduct qualifies as speech entitled to the protection of the First Amendment….
Animal Legal Defense Fund v. Wasden (9th Cir. 2018) guides our analysis. After holding that the creation of audio and video recordings was speech entitled to full First Amendment protection, Wasden held that the Idaho statute at issue in that case, which required the facility owner's consent to make unannounced recordings of "the conduct of an agricultural production facility's operations," was "an 'obvious' example of a content-based regulation of speech because it 'defin[es] regulated speech by particular subject matter.'"
We gave two reasons for this conclusion. First, the statute drew "a distinction 'on its face' regarding the message the speaker conveys." Specifically, it "would permit filming a vineyard's art collection but not the winemaking operation." "Likewise, a videographer could record an after-hours birthday party among co-workers, a farmer's antique car collection, or a historic maple tree but not the animal abuse, feedlot operation, or slaughterhouse conditions." Second, we reasoned that "only by viewing the recording can the [state] authorities make a determination about criminal liability" because the application of the exception "explicitly pivots on the content of the recording."
Our second rationale (that a law regulating the act of making specified recordings is content based if state authorities cannot apply the law without viewing or listening to the particular recording at issue) requires some further examination. After we decided Wasden, the Supreme Court [in City of Austin v. Reagan National Advertising (2022)] rejected a per se rule "that a regulation cannot be content neutral if it requires reading the [speech] at issue." Instead, City of Austin held that location-based rules, such as a rule differentiating between signs on a premise that advertise an on-site business from signs that advertise some off-site matter, are not content based, even though city authorities had to review the sign's message to apply the rule. When a rule is merely a "location-based and content-agnostic on-/off-premises distinction," it does not "singl[e] out specific subject matter for differential treatment." Instead, the sign's message merely "informs the sign's relative location." But as the Court clarified, this exception for location-based rules does not affect the Court's longstanding holding that "regulations that discriminate based on the topic discussed or the idea or message expressed … are content based."
Wasden did not address a location-based rule akin to an "on-/off-premises distinction," but considered a rule that singled out "specific subject matter for differential treatment" and discriminated based on "the topic discussed or the idea or message expressed." As a result, City of Austin's analysis does not conflict with our holding in Wasden, which remains binding. Therefore, we continue to consider whether a law "pivots on the content of the recording," in determining whether the law discriminates on the basis of "the topic discussed or the idea or message expressed" and is, therefore, content based,.
Applying Wasden here, section 165.540 is a content-based restriction on speech. On its face, section 165.540(1)(c) and its exceptions draw a distinction between topics. The speech regulated by section 165.540(1)(c) is the act of making a recording, which means that the activity captured by a recording constitutes the content or subject matter of that speech. Because the rules imposed by section 165.540 vary depending on the activity being recorded, the statute clearly draws content-based distinctions under Wasden. The law's applicability plainly "pivots on the content of the recording"—namely, what the recording captures.
For example, the law applies no restrictions to recording law enforcement officials engaged in their official duties, but prohibits recording other government officials performing official duties unless they are informed that their conversation is being recorded. Similarly, the statute distinguishes between recording felonies endangering human lives, and recording similar conduct during the commission of a misdemeanor. These distinctions are "obvious" examples of a content-based regulation of speech because they "define regulated speech by particular subject matter." In addition, state "authorities [can] make a determination about criminal liability" under the law "only by viewing the recording." This serves as further evidence that the applicability of section 165.540(1)(c) pivots on the content of the recording, thereby demonstrating that the law is content based….
Because we conclude that section 165.540(1)(c) and its exceptions constitute a content-based speech restriction, we can uphold the statute only if it survives strict scrutiny. Strict scrutiny requires the government to show that the speech restriction is "narrowly tailored to address the State's compelling governmental interests." …
[W]e must analyze Oregon's interest in conversational privacy as protecting people's conversational privacy from the speech of other individuals, even in places open to the public.
In general, the government does not have a compelling interest in protecting individual privacy against unwanted communications (including the "speech" comprised of recording others) in areas open to the public unless the audience's "substantial privacy interests are being invaded in an essentially intolerable manner." Courts have recognized such a compelling interest only when patients seeking medical care are bombarded by "the cacophony of political protests" and individuals at their homes are confronted with unwanted speech. The government's interest in protecting the public's privacy from unwanted speech (including recordings of people's conversations) "is far less important" for individuals engaging in recreational, social, or commercial activities in places open to the public, such as "strolling through Central Park" or "waiting in line or having lunch outdoors in a public park," Berger, 569 F.3d at 1054. Indeed, we have held that the government does not even have a "significant interest in protecting [individuals] from unpopular speech" where those who constitute the intended audience are commercial patrons of "a place of public entertainment." Applying this framework here, Oregon does not have a compelling interest in protecting individuals' conversational privacy from other individuals' protected speech in places open to the public, even if that protected speech consists of creating audio or visual recordings of other people….
Nor is Oregon's rule narrowly tailored to be "the least restrictive or least intrusive means of" achieving the government's interest in conversational privacy, as required to pass strict scrutiny review….
The law regulates protected speech to avoid impinging on people's conversational privacy. But in public places, speech does not intrude on privacy unless it intrudes in "an essentially intolerable manner." …
The dissent argues that [the cases we rely on] are inapplicable to section 165.540(1)(c) because "state action aimed at protecting people from unwanted commercial or political speech" is "qualitatively different" than state action protecting people "from speech-gathering activities like Project Veritas's … because they appropriate the speech of others." According to the dissent, the sort of speech that includes the "appropriation of another person's speech" (i.e., recordings) is qualitatively more burdensome than other types of speech that might intrude on a person's privacy.
This position is foreclosed by Wasden, which did not accord any special attention to the privacy interests of people whose speech might be recorded. Rather, Wasden held that a state law prohibiting audio or video recordings of the conduct of an agricultural production facility's operations, which necessarily would include conversations, directions, and other forms of oral communications, "suppresse[d] more speech than necessary to further Idaho's stated goals of protecting property and privacy." Wasden's analysis of recordings under the same framework applicable to other sorts of protected speech is consistent with precedent: for example, under our case law, we analyze expressive conduct that merits First Amendment protection as symbolic speech in the same manner as we analyze oral communications.
Finally, as in Wasden, the rule is not narrowly tailored because "there are various other laws at [Oregon's] disposal that would allow it to achieve its stated interests while burdening little or no speech." Individuals whose conversation is captured in public by unannounced recordings "can vindicate their rights" through an invasion of privacy tort. Or if the recording is fabricated, "the victims can turn to defamation actions for recourse."…
The majority also held that, even if the exceptions to § 165.540(1)(c) could be "severed" by declaring them unconstitutional and analyzing just an exception-less version of the section, that wouldn't save the section from invalidation:
Assuming that section 165.540(1)(c), considered by itself, is content neutral, it can be "saved" as constitutional if it qualifies as a valid time, place, or manner restriction. Such a restriction must (1) be content neutral, (2) survive intermediate scrutiny review, and (3) "leave open ample alternative channels for communication of the information." Hoye v. City of Oakland, 653 F.3d 835, 844 (9th Cir. 2011) (citing Rock Against Racism, 491 U.S. at 791, 109 S.Ct. 2746); see also Regan v. Time, Inc., 468 U.S. 641, 648, 104 S.Ct. 3262, 82 L.Ed.2d 487 (1984). Assuming that section 165.540(1)(c) would be content neutral if it were a stand-alone provision and would survive intermediate scrutiny review, we conclude it does not satisfy the third requirement….
In light of [the Supreme Court's precedent on] what case law requires for a speech restriction to leave open ample alternative channels for communication, it is clear that section 165.540(1)(c) does not meet the mark. It functions as "an absolute prohibition on a particular type of expression"—the creation of unannounced audiovisual recordings. Though section 165.540(1)(c) allows individuals to record conversations where participants are "specifically informed that their conversation is being obtained," such notification would effectively destroy the intended content of the recording. The subject matter of unannounced recordings is the subjects' candid responses to issues of controversy. Because the protected speech is the recording of subjects' unfiltered responses, a rule that requires the person creating the recording to provide notice extinguishes that speech. In other words, creating announced recordings is not an adequate alternative channel of speech for creating unannounced recordings.
Nor does after-the-fact reporting of an undercover interview or encounter provide an adequate alternative method of communication. Audiovisual recording is a unique medium of communication. It captures in real time both the sounds and sights of an event, making it more trustworthy and persuasive—and thus having vastly greater impact—than post-hoc written or oral accounts…. Audiovisual recordings are also unique because they can readily be disseminated to a wider audience when incorporated into news programming….
Judge Morgan Christen dissented; here's a short excerpt—read the whole opinion for more (and see also more of the majority opinion, which I've likewise trimmed down considerably):
"The right to speak and publish does not carry with it the unrestrained right to gather information."
When it adopted Oregon Revised Statutes section 165.540(1)(c), the Oregon legislature required that notice must be given before in-person oral conversations may be recorded. With this statute, the legislature ensured that Oregonians would be free to engage in the "uninhibited exchange of ideas and information," without fear that their words could be broadcast beyond their intended audience, appear on the evening news, or worse, be manipulated and shared across the internet devoid of relevant context….
Because the majority does not dispute that the State has a significant interest in protecting the privacy of Oregonians who engage in conversations without notice that their comments are being recorded, our court's analysis should be straightforward. First, principles of federalism require that we begin from a premise of reluctance to strike down a state statute. Next, following Supreme Court precedent, we should sever the two statutory exceptions that Project Veritas challenges, apply intermediate scrutiny to the content-neutral remainder, recognize that the statute is well-tailored to meet Oregon's significant interest, and uphold section 165.540(1)(c) as a reasonable time, place, or manner restriction….
[U]nlike writing a book or painting a picture, recording a conversation involves the appropriation of others' speech. To be clear, I agree that Project Veritas's act of creating a recording is protected speech, but it is important to recognize that the type of speech Project Veritas plans to engage in—unannounced in-person recordings of oral conversations—infringes upon other speakers' competing interest in conversational privacy. That competing interest plays a critical role when we assess whether the State's time, place, or manner restriction is reasonable and sufficiently tailored to the State's significant interest.
Project Veritas argues that the dangerous-felony exception and the law-enforcement exception are both content based, rendering all of section 165.540(1)(c) content based. For purposes of this analysis, I assume this is correct. Content-based restrictions on speech are subject to strict scrutiny, and Oregon does not argue that section 165.540(1)(c) can satisfy that heightened standard. But even assuming that section 165.540(1)(c) fails strict scrutiny if the two challenged exceptions are considered, the question we should ask next is whether the two statutory exceptions are severable….
["]One who invites another to his home or office takes a risk that the visitor may not be what he seems, and that the visitor may repeat all he hears and observes when he leaves. But he does not and should not be required to take the risk that what is heard and seen will be transmitted by photograph or recording, or in our modern world, in full living color and hi-fi to the public at large or to any segment of it that the visitor may select. A different rule could have a most pernicious effect upon the dignity of man and it would surely lead to guarded conversations and conduct where candor is most valued ….["] This rationale is not limited to conversations within private residences …. The secret recording of speech is far more destructive to one's privacy than merely having oral communications heard and repeated….
Section 165.540(1)(c) also leaves open ample alternative channels of communication for Project Veritas to engage in investigative journalism and to communicate its message. It is well-settled that an alternative channel need not be ideal, but merely adequate….
Project Veritas retains ample alternative means of engaging in investigative journalism and expressing its message. It can employ all the tools of traditional investigative reporting, including but not limited to talking with whistleblowers and other inside sources, crowd-sourcing information, researching public records, taking photographs and recording videos that do not capture oral conversations, and using Oregon's freedom-of-information laws. It can also openly record during public and semi-public meetings and events, Or. Rev. Stat. § 165.540(6)(a)(A), and, in other settings, provide notice that it is recording without announcing that it is engaging in investigative journalism. These many approaches to traditional investigative reporting satisfy the alternative-channels requirement….
Benjamin Barr and Stephen Klein of Barr & Klein PLLC represent Project Veritas.
