An Oregon law that forbids recording in public without consent runs afoul of the U.S. Constitution’s First Amendment, a U.S. court has ruled.
Exceptions to the prohibition include recording at public meetings, such as city council hearings; while a felony that endangers human life is being committed; and by law enforcement officers while performing their jobs.
The law is content-based because certain groups, such as the law enforcement officers, are treated differently from others, Ms. Ikuta said. That means it has to be narrowly tailored and serve a compelling governmental interest, or survive a test known as strict scrutiny.
Oregon doesn’t have a compelling interest in protecting people’s privacy in public places, the majority ruled. Even if it did, the law is not tailored narrowly enough because Oregon has other laws that cover privacy concerns, such as one allowing tort lawsuits by people who are recorded without consent.
The law “burdens more protected speech than is necessary to achieve its stated interest,” the judge wrote.
The judge also said that the law regulates speech to protect people’s privacy but that many people in public places don’t seek privacy. Instead of acknowledging that point, the law treats all speech in public the same.
When people talk in public places, the privacy of other individuals is only implicated if the speech is unwanted, but the law does not incorporate that point, the majority said. They used the example of protesters who may want their conversations recorded in the hopes it will lead to publicity for their cause.
Ms. Ikuta was joined by Circuit Judge Carlos Bea, another George W. Bush appointee.
Judge Morgan Christen, an Obama appointee, wrote in her dissent that the law should be upheld because Oregon “has a significant interest in preventing the secret recording of private conversations even when those conversations occur in public or semi-public locations.”
Ms. Christen also said the law is narrowly tailored to serve that interest.
Oregon is one of only five states that have laws in places banning recording in public places without consent. The others are Alaska, Kentucky, Massachusetts, and Montana.
Earlier Ruling
The new ruling overturns a previous decision by a lower court.The journalism group Project Veritas challenged the law in 2020, arguing that it could result in undercover reporters’ being criminally charged. People have refused to talk in the past when being told they were being recorded, the group said, meaning the law prevented reporters from exercising their First Amendment rights.
Project Veritas said it would, if not for the law, carry out investigations in Oregon, including probing allegations concerning the state’s public records advocate and the spike in violence in Portland.
Oregon officials had argued that the law is allowed under the Constitution because it’s balanced and content-neutral. They also said Project Veritas lacked standing to challenge the law because it had not made any recordings in the state that might be affected by the law.
U.S. District Judge Michael Mosman, a George W. Bush appointee, ruled in 2021 against Project Veritas and in favor of the state, finding that the law is “content neutral” and served a governmental interest.
“I find the recording statute satisfies intermediate scrutiny because the statute does not burden substantially more speech than necessary to serve the government’s interest in safeguarding individual privacy,” he wrote at the time.
In the new ruling, the appeals court said Project Veritas had sufficient standing because the group had shown it intended to violate the law and indicated that the state would enforce the law against it when it did.
“We are thrilled that the Ninth Circuit invalidated Oregon’s suppression of newsgathering today. Realizing the law had nothing to do with protecting privacy and everything to do with the suppression of undercover journalism, the Ninth Circuit facially invalidated the law," Benjamin Barr, an attorney representing Project Veritas, said in a statement.
“This ruling helps citizen journalists throughout the state be able to gather high-value information and report upon it to the public without fear of criminal sanctions by Oregon. As it stands in other areas of the law, whatever one shares in public cannot be deemed private, and recording laws that punish this sort of newsgathering should fall by the wayside,” Mr. Barr added.
James O'Keefe, the founder of Project Veritas, who exited the group earlier this year, said that the law had allowed the government to “distort the newsgathering process” and banned “too much effective journalism.”
The defendants, Multnomah County District Attorney Michael Schmidt and Oregon Attorney General Ellen Rosenblum, both Democrats, didn’t respond to requests for comment by press time.
