72 F.4th 1043
9th Cir.2023Background:
- Oregon Rev. Stat. §165.540(1)(c) forbids obtaining any part of an in-person “conversation” by device unless all participants are specifically informed; the definition covers video conferences and has several statutory exceptions.
- Two contested exceptions allow unannounced recordings: (1) conversations during felonies that endanger human life (added 1989), and (2) conversations in which a law enforcement officer is a participant under certain conditions (added 2015).
- Project Veritas, an undercover investigative journalism organization, alleged it would make unannounced audiovisual recordings in public places (restaurants, parks, sidewalks) to investigate matters of public concern but would be deterred by §165.540(1)(c); it sued Oregon seeking a declaratory judgment and injunction.
- The Ninth Circuit held that creating audiovisual recordings is expressive conduct protected by the First Amendment (following Animal Legal Defense Fund v. Wasden), and that §165.540(1)(c) plus its exceptions is content-based because applicability pivots on the subject matter captured.
- The court concluded the statute fails strict scrutiny (no compelling interest shown for conversational privacy in public; not narrowly tailored) and also cannot be sustained as a time, place, or manner restriction because it forecloses a unique medium (unannounced audiovisual recordings) and does not leave ample alternatives; the statute was held facially unconstitutional and not severable into a constitutional remainder.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether §165.540(1)(c) regulates First Amendment‑protected speech and is content‑based | Recording (the act of creating audiovisual recordings) is inherently expressive; the statute and its exceptions single out subject matter, making it content‑based | The statute is a content‑neutral privacy regulation; exceptions do not transform the general prohibition into content‑based restriction | Court: Recording is protected speech; the statute (including exceptions) is content‑based because application pivots on the subject matter captured; strict scrutiny applies |
| Whether the statute survives strict scrutiny (compelling interest / narrow tailoring) | State lacks a compelling interest in protecting conversational privacy in public and the law is overinclusive; less speech‑restrictive remedies exist | Oregon asserts a significant/compelling interest in conversational privacy and public protections justify the rule | Court: State did not carry strict scrutiny burden—no compelling interest in public settings and statute is not narrowly tailored; struck down |
| Whether the general prohibition can be upheld as a content‑neutral time, place, or manner restriction if exceptions are severed | Even as a standalone provision, the ban forecloses a unique medium (unannounced audiovisual recordings) and leaves insufficient alternative channels | If exceptions severed, the remainder is content‑neutral and should be reviewed under intermediate scrutiny and upheld as tailored to privacy interests | Court: Standalone provision fails the "ample alternatives" requirement because notice requirement destroys the very expressive content of unannounced recordings; not a valid time/place/manner restriction |
| Severability: can the exceptions be severed to save the statute? | The exceptions render the statute content‑based and facially invalid; severing would not cure constitutional defects because the general ban itself fails alternative‑channels review | Under Oregon severability law the exceptions are severable; pre‑amendment statute was freestanding for decades so legislature would have retained it | Court: Exceptions cannot be severed to save the statute—severance would not render the remainder constitutional; statute facially invalid |
Key Cases Cited
- Animal Legal Def. Fund v. Wasden, 878 F.3d 1184 (9th Cir. 2018) (act of making audiovisual recordings is protected speech; statute defining prohibited recordings content‑based)
- Reed v. Town of Gilbert, 576 U.S. 155 (2015) (content‑based regulations trigger strict scrutiny)
- City of Austin v. Reagan Nat’l Ad. of Austin, LLC, 142 S. Ct. 1464 (2022) (location/on‑premises distinctions may be content‑neutral; distinguishes topic‑based discrimination)
- Ward v. Rock Against Racism, 491 U.S. 781 (1989) (time, place, manner framework: narrow tailoring and ample alternatives required)
- Bartnicki v. Vopper, 532 U.S. 514 (2001) (privacy interests and disclosure of recorded communications considered under First Amendment)
- Fordyce v. City of Seattle, 55 F.3d 436 (9th Cir. 1995) (First Amendment protects right to record matters of public interest, including police)
- Scott v. Harris, 550 U.S. 372 (2007) (audiovisual recordings can be uniquely probative and authoritative)
- City of Ladue v. Gilleo, 512 U.S. 43 (1994) (restriction that forecloses a unique means of expression may fail the alternatives inquiry)