Veritas

The en banc United States Court of Appeals for the Ninth Circuit rejected a challenge by Project Veritas to the constitutionality of an Oregon statute that criminalizes surreptitious recording

Appellants Project Veritas and Project Veritas Action Fund (collectively, “Project Veritas”) argue that an Oregon statute prohibiting unannounced recordings of oral conversations violates the First Amendment. Project Veritas brings as-applied and facial challenges. It contends that the statute is a content-based restriction on expression that is subject to strict scrutiny and that the statute is facially invalid as overbroad. Because Oregon’s statute does not discriminate on the basis of viewpoint or restrict discussion of an entire topic, we conclude it is content neutral, and that it survives intermediate scrutiny. Because Project Veritas fails to show that any unconstitutional applications of the statute substantially outweigh its constitutional applications, Project Veritas cannot establish facial invalidity. Accordingly, we reject Project Veritas’s claims and affirm the district court’s order dismissing the complaint.

From the headnote

The en banc court held that Project Veritas’s recording of conversations in connection with its newsgathering activities is protected speech within the meaning of the First Amendment. The conversational privacy statute, as applied to Project Veritas, regulates that speech. Because Oregon’s conversational privacy statute directly regulates Project Veritas’s act of creating speech that falls within the core of the First Amendment, it triggers First Amendment scrutiny.

The en banc court next held that the conversation privacy statute is content-neutral because it does not discriminate on the basis of viewpoint or restrict discussion of an entire topic. Rather it places neutral, content-agnostic limits on the circumstances under which an unannounced recording of a conversation may be made. Neither the felony exception nor the law enforcement is content-based within the meaning of controlling First Amendment precedent. Accordingly, intermediate scrutiny applied.

The conversation privacy statute survived intermediate scrutiny as applied to Project Veritas. 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.

Finally, the en banc court rejected Project Veritas’s facial overbreadth challenge. Project Veritas fails to show that any unconstitutional applications of the conversation privacy statute substantially outweighed its constitutional applications.

There were concurring and dissenting opinions

Concurring in the judgment, Judge Bennett wrote separately because there is no historical or precedential foundation to support the holding that the purely mechanical act of pressing an audio record button in secret or without announcement is always protected speech. Judge Bennett would hold that such an act is not per se “speech” protected by the First Amendment. With that understanding, Project Veritas’s facial challenge fails. The as-applied challenge fails for the reasons explained in the majority’s opinion.

Dissenting, Judge Lee, joined by Judge Collins, wrote that even assuming intermediate scrutiny applies, Oregon’s law, which bans the taping of conversations where there is no reasonable expectation of privacy, is grossly overbroad and not narrowly tailored to advance the state’s interest in conversational privacy. Moreover, 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.

(Mike Frisch)