Summary
The United States Court of Appeals for the Ninth Circuit affirmed the district court's dismissal of Project Veritas's First Amendment challenge to Oregon's conversational privacy statute, which requires notice before recording oral conversations. The en banc court held that the statute is content-neutral and survives intermediate scrutiny as applied to the plaintiff's newsgathering activities, while also rejecting its facial overbreadth challenge. The court concluded the as-applied challenge was ripe based on the plaintiff's concrete recording plans and resulting self-censorship.
Topics
Practice areas
Questions Presented
- Whether Oregon's conversational privacy statute, as applied to Project Veritas, violates the First Amendment.
- Whether the statute is content‑neutral and therefore subject to intermediate scrutiny.
- Whether the statute is facially overbroad.
- Whether the statute should be severed if any portion is unconstitutional.
Holdings
- The statute, as applied to Project Veritas, does not violate the First Amendment.
- The statute is content‑neutral and therefore subject to intermediate scrutiny.
- The facial overbreadth challenge fails; the statute is not substantially overbroad.
- No severability analysis is required because the court found no unconstitutional portion.
Key quotations
“The First Amendment protects the act of making at least some recordings.”
“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.”
Factual background
Project Veritas is a nonprofit media organization that engages in undercover journalism and frequently records oral conversations without announcing the recording. Oregon's conversational privacy statute, OR Rev. Stat. §165.540(1)(c), prohibits unannounced recordings of face‑to‑face conversations unless an exception applies. Project Veritas challenged the statute both facially and as‑applied, arguing that it infringes its First Amendment rights.
Procedural history
The district court granted the motion to dismiss in part and the parties stipulated to dismissal of the remaining claims. Project Veritas appealed the dismissal.