Ninth Circuit Dumps Oregon’s ‘Surreptitious Recording’ Law, Handing A First Amendment Win To Project Veritas

The worst people can make the best case law. That’s the way it works here in the United States, where the court system occasionally works like it should and the old “disagree with what you say but defend your right to say it” axiom is upheld by judges who frequently have to deal with speech probably only the speaker likes.

That’s the case here. A law previously abridged to make exceptions for the recording of serious criminal activity and police offices performing their duties (sometimes the same thing!) has been basically struck down as being a violation of First Amendment rights even when it doesn’t intersect with these two specific exceptions. (via Volokh Conspiracy)

The “worst people” part of the equation is in play here. It involves Project Veritas, a supposed font of journalism that is most known for its hypocrisy and grifter-esque activities. Journalists all do journalism differently, but Project Veritas is basically a far-right tabloid in digital form — an entity that dishonestly edits its recordings to show only the things it wants to put on display. It’s “gotcha” journalism, but “gotcha” journalism that rarely exposes anything more than its contributors’ lack of ethics.

That being said, it can occasionally make a good point. And it does that here, with the end result being the Ninth Circuit (the most liberal of courts, to hear “conservatives” tell it) informing the state of Oregon that its two-party consent requirement simply does not conform with the First Amendment.

This is from the summary of the opinion [PDF]:

Section 165.540(1)(c) of the Oregon Revised Statutes provides that a person may not obtain or attempt to obtain the whole or any part of a conversation by means of any device if not all participants in the conversation are specifically informed that their conversation is being obtained. The law provides two exceptions relevant to this appeal: (1) section 165.540(1)(c) does not apply to a person who records a conversation during a felony that endangers human life, Or. Rev. Stat § 165.540(5)(a); and (2) section 165.540(1)(c) allows a person to record a conversation in which a law enforcement officer is a participant if the recording is made while the officer is performing official duties and meets other criteria.

That’s how the law read prior to this decision. Two carve-outs, both very limited. Project Veritas argued it couldn’t pursue its brand of journalism if it was required to provide notice that conversations were being recorded. The biggest problem with the law is addressed in the next paragraph.

Applying Animal Legal Def. Fund. v. Wasden, 878 F.3d 1184 (9th Cir. 2018), the panel held that section 165.540(1)(c) regulates protected speech (unannounced audiovisual recording) and is content based because it distinguishes between particular topics by restricting some subject matters (e.g., a state executive officer’s official activities) and not others (e.g., a police officer’s official activities). As a content-based restriction, the rule fails strict scrutiny review because the law is not narrowly tailored to achieving a compelling governmental interest in protecting conversational privacy with respect to each activity within the proscription’s scope, which necessarily includes its regulation of protected speech in places open to the public.

This means Project Veritas was correct to challenge the law. As much as some of us would have preferred a different entity to lead the way, the law is clearly unconstitutional. Some government entities are protected from the speech of others while other government entities aren’t. At worst, laws regulating speech need to be consistent. This one — thanks to necessary carve-outs secured by other legal action — isn’t.

The first carve-out was enacted in 1955 as a favor to law enforcement, allowing them to wire up people for surreptitious recordings of suspected criminals without seeking a warrant first. The second carve-out arrived six decades later as a response to bullshit arrests of citizens for recording their interactions with law enforcement officers. The rest of the law remained intact. But given the two exceptions, the law is no longer a constitutional law, because it crosses constitutional lines that can’t be completely justified by the state’s interest in protecting the privacy of (only some!) face-to-face conversations that occur in public places.

There’s a dissenting opinion included as well. That opinion says the state could sever the two exceptions to make the law constitutional again. But the majority says this analysis is wrong. While it would make the law more cohesive, it wouldn’t address the underlying problem: that the law effectively neutralizes one particularly powerful form of newsgathering: surreptitious recordings in which subjects may disclose information they wouldn’t if they thought they were being recorded.

It also claims there’s a First Amendment right to express yourself in public without fear of being surreptitiously recorded, which is truly a bizarre assertion:

[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

This argument might be more sound if it was the government arguing it could not be prevented from recording any conversation taking place in a public area. But this isn’t a case where the government might be interfering with personal privacy. This is a private entity arguing it has a First Amendment right to record other people’s conversations in public areas. Even though we would all prefer to not be eavesdropped on by other citizens, our options are to go somewhere more private or just deal with the fact that anything that can be overheard in a public area can be recorded. This means we should be able to record any public official performing their duties in public. And this means Project Veritas should be able to eavesdrop on protesters, responding officers, and any public official who chooses to speak (even conversationally) in public.

And, as much as I personally dislike Project Veritas, this analysis by the dissent seems to claim that journalistic (or accountability efforts) should be subjected to more government regulation simply because the means of distribution have been democratized.

In other words, in Project Veritas’s view, having one’s oral communication secretly recorded imposes no greater burden on privacy than merely having the same comments heard—never mind that recorded comments can be forwarded to vast audiences, posted on the internet in perpetuity, selectively edited, presented devoid of context, or manipulated using modern technology.

This doesn’t mean speech should be more regulated. The same distribution channels — this so-called Wild West Internet — is freely usable by those whose words and actions have been twisted (or at least misrepresented) by entities like Project Veritas, whose only real goal is owning the libs by any means necessary. Its work speaks for itself. And there have already been plenty of exposés of its unsavory tactics and deceptive editing. This debunking was achieved without the government’s “help” or any additional incursions on First Amendment rights.

The majority is correct: the law, as written, subtracts protections and adds government interference. And as such, it cannot be allowed to stand.