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Project Veritas: Changing the Law on Recording Conversations

The Federal 9th Circuit Court of Appeals recently handed down a new first amendment decision[1] about recording other people without their knowledge which radically impacts what people in Oregon (as well as California, Washington, and Alaska) can record without informing anyone ahead of time. This case is known as the Project Veritas case (the Plaintiff in the case).

The Law

In Oregon, it was previously ok to record a phone call, so long as one person on the call knew it was being recorded. However, in person, it was ok to record a conversation only if all people participating in the conversation knew that the conversation was being recorded.

The Court held:

Reading section 165.540(1)(c) as a whole, we conclude that it is a content-based speech restriction that cannot survive strict scrutiny because Oregon has not asserted a compelling government interest and because the statute is not narrowly tailored. The statute is also not a valid time, place, or manner restriction because it does not leave open ample alternative channels for communication. Applying Oregon law, we may not sever the exceptions because severing them would not render section 165.540(1)(c) constitutional. Accordingly, we conclude that the statute is facially unconstitutional. REVERSED and REMANDED

What does that mean?

For those of you who want the holding in plain English:

First the Court relies on previous cases which held that recording a conversation was speech. While this might seem like a stretch, the Court of Appeals, relying on prior cases, used this principle as the basis for its holding, so that is already established law.

The Court then determined that the statute was “content based,” meaning that some content could be recorded and other content could not. This type of restriction is not permitted because if some speech is allowed, all speech must be allowed. Since the statute provided that some recordings required consent and other recordings did not, it was unconstitutional regulation of speech.

Why do we care?

Suppose your ex-husband said something awful which you surreptitiously recorded. Prior to this decision, you could be guilty of a crime depending on where and how the recording was made. After this decision, you cannot be charged with a crime and the recording will be admitted as evidence even if it didn’t fit one of the exceptions previously. This is a dramatic—and somewhat unexpected—shift in the law.

[1] UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT PROJECT VERITAS; PROJECT VERITAS ACTION FUND, Plaintiffs-Appellants, v. MICHAEL SCHMIDT, in his official capacity as Multnomah County District Attorney; ELLEN ROSENBLUM, in her official capacity as Oregon Attorney General, Defendants-Appellees. No.22-35271 D.C. No. 3:20-cv01435-MO OPINION Appeal from the United States District Court for the District of Oregon Michael W. Mosman, District Judge, Presiding Argued and Submitted December 7, 2022 Pasadena, California Filed July 3, 2023 Before: Carlos T. Bea, Sandra S. Ikuta, and Morgan Christen, Circuit Judges.

Photo by Onur Binay on Unsplash

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