PROJECT VERITAS; PROJECT VERITAS ACTION FUND, Plаintiffs-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
United States Court of Appeals, Ninth Circuit
July 3, 2023
D.C. No. 3:20-cv-01435-MO.
Before: Carlos T. Bea, Sandra S. Ikuta, and Morgan Christen, Circuit Judges.
OPINION
Opinion by Judge Ikuta; Dissent by Judge Christen
SUMMARY*
Civil Rights / First Amendment
The panel reversed the district court‘s dismissal of a complaint challenging, as an unconstitutional restriction of protected speech,
Applying Animal Legal Def. Fund. v. Wasden, 878 F.3d 1184 (9th Cir. 2018), the panel held that
Dissenting, Judge Christen stated that because the majority does not dispute that the State has a significant interest in protecting the privacy of Oregonians who engage in conversations without notice that their comments are being recorded, the court‘s analysis should be straightforward. First, principles of federalism require that the panel begin from a premise of reluctance to strike down a state statute. Next, following Supreme Court precedent, the panel should sever the two statutory exceptions that Project Veritas challenges, apply intermediate scrutiny to the content-neutral remainder, recognize that the statute is well tailored to meet Oregon‘s significant interest, and uphold
COUNSEL
Benjamin Barr (argued), Barr & Klein PLLC, Bull Valley, Illinois; Stephen Klein, Barr & Klein PLLC, Washington, D.C.; for Plaintiffs-Appellants.
Philip M. Thoennes (argued), Assistant Attorney General; Michael A. Casper, Senior
OPINION
IKUTA, Circuit Judge:
Oregon law generally prohibits unannounced recordings of conversations, subject to several exceptions. We conclude that Oregon‘s law is a content-based restriction that violates the First Amendment right to free speech and is therefore invalid on its face.
I
A
This general rule is subject to numerous exceptions. See
The general rule in
But in 1989, legislators succeeded in making an exception to
65th Assemb., Reg. Sess. (Or. 1989) (“This measure would eliminate the requirement that police officers obtain prior court approval before using a ‘body wire’ where felony drug offenses or life-endangering felonies are being committed.“); Hearing on H.B. 2250, 2251, 2252 Before the Subcomm. on Crime & Corrs. of the H. Comm. on the Judiciary, 65th Assemb., Reg. Sess. 11–12 (Or. 1989) (statement of Cap. Will Hingston, Or. State Sheriffs’ Ass‘n) (stating that
B
Project Veritas is a non-profit media organization that engages in undercover investigative journalism. Project Veritas stated that it documents matters of public concern by making unannounced audiovisual recordings of conversations, often in places open to the public. In the past, Project Veritas journalists have used undercover recordings to document the “Unite the Right” rally in Charlottesville, Virginia, to record campaign workers for presidential candidates, to capture the efforts of campaign staff to stir up violence at rallies of the opposing candidate, and to interview the staff for a gubernatorial candidate who confirmed the candidate‘s more controversial views and efforts to conceal them.
Project Veritas stated that it would conduct similar investigations in Oregon but for Oregon‘s prohibition on unannounced in-person audiovisual recordings. Among other things, Project Veritas alleged it would investigate corruption at the state agency responsible for enforcing Oregon‘s public records law by recording undercover interviews with officers and staff in locations open to the public, like restaurants, parks, and sidewalks. In addition, Project Veritas alleged it would investigate the “rise in violent protests in Portland between the police and members of Antifa and other” groups by secretly recording interactions between police officers and protesters. Project Veritas would also send undercover journalists into groups of police and protesters to engage them in conversation and record their candid remarks. Outside of organized rallies, Project Veritas would “do most of its [undercover] recording on public sidewalks, public parks, or in other areas held open to the public.” Project Veritas alleged that the safety and even lives of its journalists would be endangered if they were to record cоnversations openly and in plain view or to inform participants that they are being recorded.
Project Veritas sued the Oregon Attorney General, Ellen Rosenblum, and the District Attorney of Multnomah County, Oregon, Michael Schmidt (collectively, Oregon), challenging
Oregon moved to dismiss the complaint. The district court partially granted the motion, and the parties agreed to dismiss the remaining claims with prejudice.6 Project Veritas timely appealed.
II
We review de novo a district court‘s dismissal of a complaint for failure to state a claim. See In re Cutera Sec. Litig., 610 F.3d 1103, 1107 (9th Cir. 2010). “[W]e have an independent obligation to ensure that we have subject matter jurisdiction,” which includes a determination that Project Veritas has standing to bring its pre-enforcement claim. Airline Serv. Providers Ass‘n v. L.A. World Airports, 873 F.3d 1074, 1078 (9th Cir. 2017).
Project Veritas‘s allegations are sufficient to establish standing for a First Amendment pre-enforcement claim. Under
challenge, plaintiffs can show injury in fact by establishing that (1) they intend to violate the law; and (2) have shown a reasonable likelihood that the government will enforce the statute against them. Id.
For purposes of this pre-enforcement challenge, Project Veritas makes a clear showing of injury in fact. First, Project Veritas alleged that but for
We reject Oregon‘s arguments that we lack jurisdiction because Project Veritas asserts an as-applied challenge which is not ripe. Project Veritas‘s claim is properly construed as a facial challenge to
particular application,” City of Los Angeles v. Patel, 576 U.S. 409, 415 (2015), while “[a]n as-applied challenge contends that the law is unconstitutional as applied to the litigant‘s particular speech activity, even though the law may be capable of valid application to others,” Foti v. City of Menlo Park, 146 F.3d 629, 635 (9th Cir. 1998). Here, Project Veritas attacks the statute itself as an unconstitutional regulation of unannounced recordings of nearly all conversations held in places open to the public—not only those conversations that Project Veritas seeks to record.9
III
The
picture, and playing an instrument are purely expressive activities entitled to full First Amendment protection.” Id. at 1062.
A
Here, the state law at issue regulates individuals’ conduct in making an audio or video recording. Under our case law, such conduct qualifies as speech entitled to the protection of the First Amendment. See Animal Legal Def. Fund. v. Wasden, 878 F.3d 1184, 1203–04 (9th Cir. 2018).
Wasden involved “a secretly-filmed exposé of the operation of an Idaho dairy farm,” which showed dairy workers who “dragg[ed] a cow across the ground by a chain attached to her neck; twist[ed] cows’ tails to inflict excruciating pain; and repeatedly beat[], kick[ed], and jump[ed] on cows to force them to move.” Id. at 1189. This 2012 exposé distributed by an animal rights group, Mercy for Animals, resulted in the Idaho legislature enacting a statute targeting undercover investigation of agricultural operations, which criminalized, among other things, “a person from entering
After noting the “tension between journalists’ claimed First Amendment right to engage in undercover investigations and the state‘s effort to protect privacy and property rights,” id. at 1190, we held that the animal rights activist‘s conduct—creating an unannounced recording—was constitutionally protected First Amendment speech, id. at 1203–04. Wasden reached this conclusion in two steps.
First, Wasden extended our prior ruling that “there is ‘a First Amendment right to film matters of public interest,‘” id. at 1203 (emphasis added) (citing Fordyce v. City of Seattle, 55 F.3d 436, 439 (9th Cir. 1995), to hold that “[t]he act of recording is itself an inherently expressive activity” protected by the First Amendment, id. (emphasis added). We reasoned that audio and video recordings require “decisions about content, composition,” and the like, which decisions are just as expressive as “thе written word or a musical score” ultimately disseminated to the public. Id. “Because the recording process is itself expressive and is ‘inextricably intertwined’ with the resulting recording, the creation of audiovisual recordings is speech entitled to First Amendment protection as purely expressive activity.” Id. at 1204 (citation omitted).
Second, given that the act of recording is protected speech, Wasden held that the statute‘s prohibition of recording “the conduct of an agricultural production facility‘s operations” without “express consent from the facility owner” constituted a regulation of a form of protected speech, which triggered First Amendment scrutiny. Id. at 1203–04.10
Applying Wasden‘s conclusion here,
B
Because we must determine the constitutionality of
1
Wasden again guides our analysis. After holding that the creation of audio and video recordings was speech entitled to full First Amendment protection, Wasden held that the Idaho statute at issue in that case, which required the facility owner‘s consent to make unannounced recordings of “the conduct of an agricultural production facility‘s operations,” was “an ‘obvious’ example of a content-based regulation of speech because it ‘defin[es] regulated speech by particular subject matter.‘” 878 F.3d at 1204 (citing Reed, 576 U.S. at 163). We gave two reasons for this conclusion. First, the statute drew “a distinction ‘on its face’ regarding the message the speaker conveys.” Id. (citing Reed, 576 U.S. at 165). Specifically, it “would permit filming a vineyard‘s art collection but not the winemaking operation.” Id. “Likewise, a videographer could record an after-hours birthday party among co-workers, a farmer‘s antique car collection, or a historic maple tree but not the animal abuse, feedlot operation, or slaughterhouse conditions.” Id. Second, we reasoned that “only by viewing the recording can the [state] authorities make a determination about criminal liability” because the application of the exceрtion “explicitly pivots on the content of the recording.” Id.
Our second rationale (that a law regulating the act of making specified recordings is content based if state authorities cannot apply the law without viewing or listening to the particular recording at issue) requires some further examination. After we decided Wasden, the Supreme Court rejected a per se rule “that a regulation cannot be content neutral if it requires reading the [speech] at issue.” City of Austin, 142 S. Ct. at 1471. Instead, City of Austin held that location-based rules, such as a rule differentiating between signs on a premise that advertise an on-site business from signs that advertise some off-site matter, are not content based, even though city authorities had to review the sign‘s message to apply the rule. Id. at 1472. When a rule is merely a “location-based and content-agnostic on-/off-premises distinction,” it does not “singl[e] out specific subject matter for differential treatment.” Id. at 1475 (citation omitted). Instead, the sign‘s message merely “informs the sign‘s relative location.” Id. at 1473. But as the Court clarified, this exception for location-based rules does not affect the Court‘s longstanding holding that “regulations that discriminate based on the topic discussed or the idea or message expressed . . . are content based.” Id. at 1474 (citation and quotation marks omitted).
Wasden did not address a location-based rule akin to an “on-/off-premises distinction,” but considered a rule that singled out “specific subject matter for differential treatment” and discriminated based on “the topic discussed or the idea or message expressed.” Id. at 1474–75. As a result, City of Austin‘s analysis does not conflict with our holding in Wasden, which remains binding. See Miller v. Gammie, 335 F.3d 889, 893 (9th Cir. 2003) (holding that a three-judge panel is bound by precedent unless it “is clearly irreconcilable with the reasoning or theory of intervening higher authority“). Therefore, we continue to consider whether a law “pivots on the content of the recording,” Wasden, 878 F.3d at 1204, in determining whether the law discriminates on the basis of “the topic discussed or the idea or message expressed” and is, therefore, content based, City of Austin, 142 S. Ct. at 1474 (citing Reed, 576 U.S. at 171).
Applying Wasden here,
2
Oregon argues that
Oregon first argues that the statute is content neutral because the statute‘s exceptions are not based on the words
spoken and recorded, and therefore state authorities do not have to listen to and analyze the recording to determine whether an exception applies. We disagree. The statute at issue in Wasden did not distinguish based on the words spoken in a recording, but we nevertheless held that it was content based because it discriminated on the basis of subject matter to be recorded. 878 F.3d at 1204. For the same reason, it is the statute‘s differential treatment of recordings based on their subject matter (e.g., whether the speaker‘s recording obtains the conversation of Oregon police officers or Oregon executive officers) that makes the statute content based, not the words exchanged in the conversation.
Second, Oregon argues that we can consider
Moreover, any exception to a general restriction on protected speech—even if the exception applies to speech that our case law has recognized as receiving First Amendment protection, like recording police officers performing official duties in public, see Fordyce, 55 F.3d at 439; Askins v. U.S. Dep‘t of Homeland Sec., 899 F.3d 1035, 1044 (9th Cir. 2018)—necessarily renders the restriction content based. The Supreme Court analyzed a similar situation in Reed, where the challenged state law generally restricted the display of outdoor signs without a permit, but exempted signs that had ideological and political messages, which implicate speech that case law has recognized as receiving First Amendment protection. 576 U.S. at 164–65. Despite these exceptions, the Court held that the law as a whole was content based and subject to strict scrutiny, “regardless of the government‘s benign motive, content-neutral justification, or lack of ‘animus toward the ideas contained’ in the regulated speech.” Id. at 165 (citation omitted). Therefore, under this precedent, we must analyze both the general prohibition and the exceptions as one regulatory regime. Doing so makes clear that
C
Because we conclude that
In Wasden, we applied strict scrutiny to the content-based Idaho statute. 878 F.3d at 1204. We assumed that Idaho‘s asserted interest in protecting both property and privacy interests in an agricultural production facility was a compelling government interest, see id., but concluded that Idaho had not satisfied the narrow tailoring requirement because, among other reasons, there were “various other laws at Idaho‘s disposal that would allow it to achieve its stated interests while burdening little or no speech,” id. at 1205 (cleaned up) (citation and quotation marks omitted). “For example, agricultural production facility owners can vindicate their rights through tort laws against theft of trade secrets and invasion of privacy.” Id. And, as another example, “[t]o the extent the legislators expressed concern that fabricated recordings of animal abuse would invade privacy rights, the victims can turn to defamation actions for recourse.” Id. Further, we explained, “‘the remedy for speech that is false is speech that is true‘—and not, as Idaho would like, the suppression of that speech.” Id. (cleaned up) (citation omitted). Therefore, we struck down Idaho‘s ban on creating audio and visual recordings as failing to survive First Amendment scrutiny. Id.
Applying strict scrutiny to
1
We first consider the nature of Oregon‘s interest here. At the outset, Oregon does not assert it has a compelling interest, but argues only that it has a significant governmental interest in protecting individuals’ conversational privacy. In analyzing this interest, we are bound by Wasden‘s conclusion that “[t]he act of recording is itself an inherently expressive activity” that merits First Amendment protection. 878 F.3d at 1203. Therefore, prohibiting a speaker‘s creation of unannounced recordings in public places to protect the privacy of people engaged in conversation in those places is the equivalent of prohibiting protesters’ or buskers’ speech in public places for the same purpose. See Berger, 569 F.3d at 1054. Thus, we must analyze Oregon‘s interest in conversational privacy as protecting people‘s conversational privacy from the speech of other individuals, even in places open to the public.
In general, the government does not have a compelling interest in protecting individual privacy against unwanted communications (including the “speech” comprised of recording others) in areas open to the public unless the audience‘s “substantial privacy interests are being invaded in an essentially intolerable manner.” Cohen v. California, 403 U.S. 15, 21 (1971); see also Hill v. Colorado, 530 U.S. 703, 717 (2000) (recognizing that the government‘s interest in protecting privacy “varies widely in different settings“). Courts have recognized such a compelling interest only when patients seeking medical care are bombarded by “the cacophony of political protests” and individuals at their homes are confronted with unwanted speech. Hill, 530 U.S. at 716. The government‘s interest in protecting the public‘s privacy from unwanted speech (including recordings of people‘s conversations) “is far less important” for individuals engaging in recreational, social, or commercial activities in places open to the public, such as “strolling through Central Park,” id., or “waiting in line or having lunch outdoors in a public park,” Berger, 569 F.3d at 1054. Indeed, we have held that the government does not even have a “significant interest in protecting [individuals] from unpopular speech” where those who constitute the intended audience are commercial patrons of “a place of public entertainment.” Kuba v. 1-A Agric. Ass‘n, 387 F.3d 850, 861 n.10 (9th Cir. 2004). Applying this framework here, Oregon does not have a compelling interest in protecting individuals’ conversational privacy from other individuals’ protected speech in places open to the public, even if that protected speech consists of creating audio or visual recordings of other people.
2
Nor is Oregon‘s rule narrowly tailored to be “the least restrictive or least intrusive means of” achieving the government‘s interest in conversational privacy, as required to pass strict scrutiny review. Ward v. Rock Against Racism, 491 U.S. 781, 798–99 & n.6 (1989). Under strict scrutiny, a speeсh restriction must “target[] and eliminate[] no more than the exact source of the ‘evil’ it seeks to remedy.” Frisby, 487 U.S. at 485 (citation omitted). A law is not narrowly tailored if it restricts “speech that do[es] not cause the types of problems that motivated the [law].” Comite de Jornaleros de Redondo Beach v. City of Redondo Beach, 657 F.3d 936, 948 (9th Cir. 2011) (en banc). In addition, a law is not narrowly tailored if it is over-inclusive because it suppresses more speech than is necessary to further Oregon‘s goal of protecting people‘s conversational privacy. See Wasden, 878 F.3d at 1205.
Applying this test, we conclude that
Moreover, where speech occurs in places open to the public, the privacy interest of other individuals in those public
The dissent argues that Berger and its progeny are inapplicable to
This position is foreclosed by Wasden, which did not accord any special attention to the privacy interests of people whose speech might be recorded. Rather, Wasden held that a state law prohibiting audio or video recordings of the conduct of an agricultural production facility‘s operations, which necessarily would include conversations, directions, and other forms of oral communications, “suppresse[d] more speech than necessary to further Idaho‘s stated goals of protecting property and privacy.” 878 F.3d at 1205. Wasden‘s analysis of recordings under the same framework applicable to other sorts of protected speech is consistent with precedent: for example, under our case law, we analyze expressive conduct that merits First Amendment protection as symbolic speech in the same manner as we analyze oral communications. See Swisher v. City of Collinsville, 811 F.3d 304, 318 (“Content-based prohibitions of speech and symbolic speech are analyzed under the same framework.“).14
Finally, as in Wasden, the rule is not narrowly tailored because “there are various other laws at [Oregon‘s] disposal that would allow it to achieve its stated interests while burdening little or no speech.” 878 F.3d at 1205 (citation and quotation marks omitted). Individuals whose conversation is captured in public by unannounced recordings “can vindicate their
3
We conclude that
IV
The dissent agrees with our holding that
Instead, the dissent argues that
“Severability is of course a matter of state law.” Leavitt v. Jane L., 518 U.S. 137, 139 (1996). To determine whether a state statute is severable, we are bound by state statutes and state court opinions. See Sam Francis Found. v. Christies, Inc., 784 F.3d 1320, 1325 (9th Cir. 2015) (en banc).
The Oregon Supreme Court addressed the “nature of severability” in State v. Dilts, 103 P.3d 95, 99 (Or. 2004) (en banc).17 According to the Oregon Supreme Court, the relevant statute, “[section] 174.040[,] governs deсisions regarding severability.” Id. This statute provides that “it is the legislative intent, in the enactment of any statute, that if any part of the statute is held unconstitutional, the remaining parts shall remain in force” unless an exception applies.18 The exceptions to this presumption (that the legislature would prefer an unconstitutional part of a statute to be severed and the rest to remain in force) include circumstances where “parts of the statute are so interconnected that it appears likely that the remaining parts would not have been enacted without the unconstitutional part, or . . . [if] the remaining parts are incomplete and cannot be executed in accordance with legislative intent.” OutdoorMedia Dimensions, Inc. v. Dep‘t of Transp., 132 P.3d 5, 18 (Or. 2006).
Based on this statute, and Oregon Supreme Court cases, severability analysis applies “when part of a statute is held to be unconstitutional.” Dilts, 103 P.3d at 99. Under such circumstances, a court must consider “whether that part of the statute can be severed and the remaining parts of the statute saved.” Id. Namely, under this framework, a court must make two determinations. First, it must conclude that part of the statute is unconstitutional. Second, it must conclude that the rest of the statute can be “saved,” meaning it would be deemed constitutional, if the unconstitutional part were severed. “When a party contends the entire act is unconstitutional,” then “severability is not germane until the constitutional claim is . . . resolved.” Bernstein Bros. v. Dep‘t of Revenue, 661 P.2d 537, 539 (Or. 1983).
As a general rule, under Dilts and
In this context, Outdoor Media Dimensions considered a state statute that “requir[ed] a permit for a sign whose message does not relate to the premises on which the sign is located while providing an exemption for a sign whose message does relate to the premises on which the sign is located.” Id. at 7. The court first held that by exempting on-premises signs from the permit requirement, thе statute was, “on its face, an impermissible restriction on the content of speech” in violation of the Oregon constitution. Id. at 18. Turning to the issue of severability, the court explained that to remedy the constitutional violation it could either invalidate the permit requirement or sever the exception for on-premises signs. Id. at 19. The court determined that “faced with that choice, the legislature would not have been willing to extend the [statute‘s] permit and fee requirements to . . . on-premises signs,” and, therefore, the court held that “the appropriate remedy” was to invalidate the permit requirement. Id.
B
1
Under Outdoor Media, we may consider whether severing the exceptions to
“[A] regulation that forecloses an entire medium of public expression across the landscape of a particular community or setting fails to leave open ample alternatives.” United Bhd. of Carpenters & Joiners of Am. Loc. 586 v. NLRB, 540 F.3d 957, 969 (9th Cir. 2008). Regulations may not hamper a speaker‘s preferred mode of communication to such an extent that they compromise or stifle the speaker‘s message. See McCullen v. Coakley, 573 U.S. 464, 487–90 (2014). Alternatives that are “less effective media for communicating the [speaker‘s] message . . . . are far from satisfactory.” Linmark Assocs., Inc. v. Township of Willingboro, 431 U.S. 85, 93 (1977). “[F]ree speech protections extend to the right to choose a particular means or avenue of speech in lieu of other avenues.” United Bhd., 540 F.3d at 969 (cleaned up) (citation and quotation marks omitted). Thus, while the “[g]overnment may regulate the manner of speech in a content-neutral way,” the government “may not infringe on an individual‘s right to select the means of speech.” Foti, 146 F.3d at 641–42.
In light of this understanding of what case law requires for a speech restriction to leave open ample alternative channels for communication, it is clear that
Nor does after-the-fact reporting of an undercover interview or encounter
In opposing this analysis, and arguing that
We disagree with this analysis. First, the dissent again fails to recognize the implications of Wasden. Under Wasden, the creation of an unannounced recording of a subject‘s unguarded conduct (which would include any statements made in the course of such conduct) is itself a form of protected speech and constitutes “a significant medium” of public expression. 878 F.3d at 1203 (citation and quotation marks omitted). As explained above,
Moreover, the dissent‘s reliance on Dietemann is misplaced. Dissent at 55–56, 62 & n.11, 65. In Dietemann,
For this reason, the dissent‘s argument that a parade of horribles will result from our analysis—such as the invalidation of “eavesdropping statutes“—is not well-taken. Dissent at 73. As explained, see supra Section III.A., the threshold question is whether the challenged law restricts First Amendment protected speech. Under Wasden, the creation of an unannounced recording is speech protected by the First Amendment. But we are not aware of any cases holding that eavesdropping (without more) is protected speech. Therefore, the First Amendment would not constitute grounds to invalidate a statute prohibiting that conduct. Moreover, we analyzed
2
Because we conclude that
“severability is not germane.” Bernstein Bros., 661 P.2d at 539. Further, under Outdoor Media Dimensions, we also conclude that the Oregon legislature would not intend the exceptions to be severed, because when Oregon courts analyze severability, they “assum[e] that the legislature prefers to avoid enacting a bill that raises serious questions of constitutionality.” State v. Borowski, 220 P.3d 100, 109 (Or. Ct. App. 2009).
If the exceptions were removed,
The dissent suggests that removing the exceptions from the general prohibition in
* * *
Reading
REVERSED and REMANDED.
“The right to speak and publish does not carry with it the unrestrained right to gather information.” Zemel v. Rusk, 381 U.S. 1, 17 (1965).
When it adopted
Project Veritas engages in undercover investigative journalism, and it finds Oregon‘s protection against the secret recording of oral conversations a hindrance to its operations. Project Veritas seeks a ruling declaring
The majority takes a very different path. It begins by straining to avoid the conclusion that the two exceptions to
My colleagues do not contest that Oregon has a significant interest in protecting people from unannounced recordings of in-person conversations, but they rewrite the State‘s articulated purpose. The purpose Oregon advances is its significant interest in protecting participants from having their oral conversations recorded without their knowledge. The majority recasts the State‘s interest as one in “protecting people‘s conversational privacy from the speech of other individuals.” Slip Op. at 25. (emphasis added). That reframing of the legislature‘s purpose serves as the springboard for the majority‘s reliance on an inapplicable line of Supreme Court authority that pertains to state action aimed at protecting people from unwanted commercial or political speech; not protection from speech-gathering activities like Project Veritаs‘s, which are qualitatively different because they appropriate the speech of others.
The majority glosses over this important distinction, and in the end, it declares that all of
For all these reasons, I respectfully dissent.
I.
In 1955, the Oregon legislature enacted what is now
Two exceptions to Oregon‘s ban on recording in-person oral conversations are at issue. The first, adopted by the legislature in 1989, allows the unannounced recording of “a conversation during a felony that endangers human life.”
II.
Project Veritas challenges
Project Veritas acknowledges the validity of Oregon‘s prohibition on “eavesdropping,” and explicitly disavows any intention of eavesdropping. As Oregon defines that term, this means Project Veritas will not intercept wire or oral communications to which Project Veritas is not a party, without the consent of the participants.
A.
In defining the scope of First Amendment protection, our precedent draws no
Project Veritas argues that the dangerous-felony exception and the law-enforcement exception are both content based, rendering all of
B.
The Supreme Court recently reiterated in Barr v. American Ass‘n of Political Consultants, Inc. [AAPC], 140 S. Ct. 2335 (2020), that when confronted with an exception that renders a restriction on speech impermissibly content based, we apply ordinary severability principles, starting with a “strong presumption of severability” that dates back to the Marshall Court. Id. at 2350; see Free Enter. Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477, 508 (2010). “The Court‘s presumption of severability . . . allows courts to avoid judicial policymaking or de facto judicial legislation in determining just how much of the remainder of a statute should be invalidated.” AAPC, 140 S. Ct. at 2351. The presumption of severability applies with particular force where, as here, the legislature “added an unconstitutional amendment to a prior law. In those cases, the Court has treated the original, pre-amendment statute as the ‘valid expression of the legislative intent.‘” Id. at 2353 (quoting Frost v. Corp. Comm‘n of Okla., 278 U.S. 515, 526-27 (1929)). We need not guess at whether the Oregon legislature intended its previously enacted protection for in-person conversations to exist independently, because
We have an obligation to consider severability regardless of whether litigants raise it.7 Principles of federalism make it particularly important that we apply a surgical approach in this case and sever any constitutionally suspect provisions, because we are a federal court treading on a state statute. The majority acknowledges that the “[s]everability [of a state statutory provision] is of course a matter of state law,” Leavitt v. Jane L., 518 U.S. 137, 139 (1996) (per curiam), and both Oregon statutory law and Oregon Supreme Court precedent require us to apply a presumption in favor of severability, see
It shall be considered that it is the legislative intent, in the enactment of any statute, that if any part of the statute is held unconstitutional, the remaining parts shall remain in force unless:
- The statute provides otherwise;
- The remaining parts are so essentially and inseparably connected with and dependent upon the unconstitutional part that it is apparent that the remaining parts would not have been enacted without the unconstitutional part; or
- The remaining parts, standing alone, are incomplete and incapable of being executed in accordance with the legislative intent.
In Outdoor Media Dimensions, the Oregon Supreme Court explained that “[o]rdinarily, when one part of a statute is found unconstitutional, this court‘s practice (and the legislature‘s stated preference) is to sever the offending part and save the remainder of the statute, unless the legislature has directed otherwise, unless the parts of the statute are so interconnected that it appears likely that the remaining parts would not have been enacted without the unconstitutional part, or unless the remaining parts are incomplete and cannot be executed in accordance with legislative intent.” 132 P.3d at 18. None of Oregon‘s exceptions to the presumption of severability apply here, so we should sever the two exceptions Project Veritas challenges and evaluate the constitutionality of the remaining notice requirement.
C.
No one disputes that
1.
Oregon‘s attorney general argues that
Project Veritas does not dispute this point. Indeed, it acknowledges that “[p]rivacy is an important governmental interest that eavesdropping and wiretapping prohibitions are narrowly tailored to protect.” Nevertheless, Project Veritas argues that if one of its undercover reporters consеnts to having an in-person conversation recorded, the other party to the conversation has only a “limited,” “tenuous,” and “minimal” privacy interest in not being recorded. To reach this implausible conclusion, Project Veritas begins from the assertion that “[a]n audio recording by a party is little more than a more accurate record of what one party is already, in the overwhelming majority of circumstances, entitled to share in a free society.” 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.
Project Veritas‘s premise is emphatically wrong. In Dietemann, we reasoned:
One who invites another to his home or office takes a risk that the visitor may not be what he seems, and that the visitor may repeat all he hears and observes when he leaves. But he does not and should not be required to take the risk that what is heard and seen will be transmitted by photograph or recording, or in our modern world, in full living color and hi-fi to the public at large or to any segment of it that the visitor may select. A different rule could have a most pernicious effect upon the dignity of man and it would surely lead to guarded conversations and conduct where candor is most valued . . . .
449 F.2d at 249. This rationale is not limited to conversations within private residences, nor does Project Veritas represent
The secret recording of speech is far more destructive to one‘s privacy than merely having oral communications heard and repeated. Recorded speech can be stored indefinitely, disseminated widely, and viewed repeatedly. In the age оf the internet and generative artificial intelligence (AI), surreptitious recording of in-person conversations risks massive and ongoing invasions of privacy. Today, anyone can access and learn how to use AI-powered generative adversarial networks to create convincing audio or video “deepfakes” that make people appear to say or do things they never actually did.8 With these tools, “the only practical constraint on one‘s ability to produce a deepfake [is] access to training materials—that is, audio and video of the person to be modeled.”9 Id. The importance of the right to have notice before one‘s oral communications are recorded cannot be overstated because technology now allows recordings to be selectively edited, manipulated, and shared across the internet in a matter of seconds.
Project Veritas acknowledges the privacy interest at stake in Oregon‘s ban on eavesdropping, yet it denies that the same privacy interests are at stake in Oregon‘s ban on secret recording of in-person conversations. This position is unsupportable. The privacy interest implicated by secret recordings of in-person conversations is grounded in the same concerns as the privacy interest implicated by eavesdropping; in both circumstances, a person‘s oral communications are shared with an unintended audience and the speaker loses the ability to knowingly choose to speak, or not speak, based upon that audience.
There is no question that journalists perform a vital role in our society and their ability to engage in speech is entitled to constitutional protection, but Project Veritas‘s speech is not the only speech implicated by the issues in this appeal. By striking down Oregon‘s carefully crafted statute, the court denies Project Veritas‘s interviewees the opportunity to knowingly choose not to participate in the recordings Project Veritas plans to create. Respectfully, the majority overlooks that secret recordings can incorporate and disseminate oral comments in ways the original speaker did not intend, and that this implicates the “principle of autonomy to control one‘s own speech.” See Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Bos., 515 U.S. 557, 574 (1995). As the Supreme Court has explained, “The First Amendment securely protects the freedom to make—or decline to make—one‘s own speech; it bears less heavily when speakers assert the right to make other people‘s speeches.” Eldred v. Ashcroft, 537 U.S. 186, 221 (2003) (emphasis added) (rejecting a First Amendment challenge to a copyright extension); see also Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539, 559 (1985) (recognizing, along with the freedom to express one‘s views publicly, the “concomitant freedom not to speak publicly” (quoting Est. of Hemingway v. Random House, Inc., 244 N.E.2d 250, 255 (N.Y. 1968))).
Project Veritas stresses that its clandestinely recorded conversations will be held mostly in public places like cafes or parks. But the State has a significant interest in preventing the secret recording of private conversations even when those conversations occur in public or semi-public locations. Everyday experiences tell us that “private talk in public places is common.” Alvarez, 679 F.3d at 606 (citation omitted). In many circumstances, even if a conversation may be heard or overheard by multiple people, the State maintains a significant interest in preventing its recording. For example, the State of Oregon points out that this interest is most obvious in multiparty gatherings that welcome members of the public yet expect that attendees will not make secret recordings of each other, such as twelve-step groups, bible study, and religious services. Our society respects those boundaries. Oregon has a significant interest in preventing unannounced recordings of oral in-person conversations.
2.
The next question is whether
There are some settings in which people cannot reasonably expect not to have their oral statements recorded, and the Oregon legislature crafted its statute to account for those situations:
The prohibitions in subsection (1)(c) of this section do not apply to persons who intercept or attempt to intercept oral communications that are part of any of the following proceedings, if the person uses an unconcealed recording device . . . :
- Public or semipublic meetings such as hearings before governmental or quasi-governmental bodies, trials, press conferences, public speeches, rallies and sporting or other events;
- Regularly scheduled classes or similar educational activities in public or private institutions; or
Private meetings or conferences if all others involved knew or reasonably should have known that the recording was being made.
more is required to meet intermediate scrutiny‘s tailoring requirement.
3.
Section
“We have observed that the Supreme Court generally will not strike down a governmental action for failure to leave open ample alternative channels of communication unless the government enactment will foreclose an entire medium of public expression across the landscape of a particular community or setting.” Menotti v. City of Seattle, 409 F.3d 1113, 1138 (9th Cir. 2005) (alteration accepted) (internal quotation marks and citation omitted). Project Veritas has no colorable argument that it would be unable to gather information to engage in investigative journalism, to communicate its message “across the landscape of a particular community or setting,” or to reach a particular audience if it cannot secretly record in-person oral interviews. Indeed, we made clear in Dietemann that restricting surreptitious recording does not foreclose an entire medium.11 449 F.2d at 249.
III.
Rather than taking the straightforward path that this case calls for, the majority strikes down all of section
A.
I agree that section
The analogy the majority draws, to case law addressing statutes protecting individuals from the unwanted speech of others, is flawed. See Cohen v. California, 403 U.S. 15, 21 (1971); Hill v. Colorado, 530 U.S. 703, 717 (2000); Berger v. City of Seattle, 569 F.3d 1029, 1054 (9th Cir. 2009) (en banc); Kuba v. 1-A Agric. Association, 387 F.3d 850, 861 n.10 (9th Cir. 2004)). The cases the majority cites involve restrictions on speech intended to further different interests, such as
The majority incorrectly asserts that Wasden forecloses my analysis. Slip Op. at 28. Wasden concerned a video of cows being abused at an agricultural facility, not a secretly recorded audio conversation between people. See 878 F.3d at 1189-90. Wasden cannot bear the weight the majority places on it because the video in that case did not require the court to confront a secret audio recording that invaded conversational privacy and captured the oral communications of other people. The majority is also incorrect to suggest that Wasden foreclosed any argument that unannounced recordings that appropriate others’ speech place a greater burden on privacy than other types of unwanted expressive conduct. Wasden held that the creation of a recording is speech protected by the First Amendment, see id. at 1203; it did not purport to address whether the invasion of privacy caused by secret recording of private conversations is equivalent to the invasion of privacy caused by being bombarded with unwanted speech in public places.
B.
The majority agrees that Oregon law governs severability, but it concludes that the dangerous-felony and law-enforcement exceptions cannot be severed from section
The majority also argues that Oregon law does not permit the two challenged exceptions to be severed because the exceptions themselves are not unconstitutional. The majority misreads Oregon law. In particular, its reliance on State v. Dilts, 103 P.3d 95 (Or. 2004) is sorely misplaced. There, a defendant‘s Sixth Amendment rights were violated when a judge imposed a sentence above the state-law guidelines without providing the defendant an opportunity to argue the facts justifying an increased sentence to the jury. Id. at 99. On appeal, the prosecution asked the court to sever the state-law requirement that the defendant‘s sentence be within the guidelines even though neither party had challenged the constitutionality of the mandatory guidelines. Id. In other words, the prosecution asked the court to sever the requirement not because it rendered the statute unconstitutional, but because it rendered the defendant‘s sentence unconstitutional. It was only in response to the prosecution‘s unusual argument that the Oregon Supreme Court explained it would not sever a statute that neither party claimed was unconstitutional. Id.
The Oregon Supreme Court makes no bright-line distinction between exceptions
Turning to the remedy, the Outdoor Media Dimensions court considered “the same two unpalatable choices that the legislature would face,” namely, whether to strike only the exemption from the permitting requirement, and require permits for “thousands of individuals and businesses“; or to instead strike the permitting requirement entirely. 132 P.3d at 19. The court decided the outcome should turn on legislative intent alone, and ultimately invalidated the entire permitting requirement because it concluded that the legislature would not have enacted it without the simultaneously enacted exemption. Id. Here, by contrast, I see no viable argument that the Oregon legislature did not intend the dangerous-felony exception and law-enforcement exception to be severable, because section
Finally, the majority argues that Oregon courts would invalidate all of section
Because the exceptions to section
C.
Perhaps the weakest link in the majority‘s opinion is its conclusion that section
In Linmark, the Supreme Court invalidated as content based a township‘s ban on “For Sale” signs, which it had enacted “to stem what it perceive[d] as the flight of white homeowners from a racially integrated community.” 431 U.S. at 86. The Court stressed that the township
City of Ladue also fails to support Project Veritas‘s cause. There, the Supreme Court held that a restriction on residential signs did not leave open adequate alternative channels of communication because “[d]isplaying a sign from one‘s own residence often carries a message quite distinct from placing the same sign someplace else, or conveying the same text or picture by other means.” 512 U.S. at 56. City of Ladue emphasized the long-held tradition of respect for individual liberty in the home and for a person‘s ability to speak there. Id. at 58. Here, by contrast, Project Veritas does not argue that reporting on in-person oral conversations without surreptitiously obtained audio recordings would convey a different message, only that its information gathering would be somewhat less effective, and there is no comparable tradition of respect for surreptitious recording. Indeed, surreptitious recording is generally considered a breach of journalistic ethics except when certain narrow criteria are met.15
McCullen is even less applicable. There, the Court struck down a statute establishing buffer zones around abortion clinics because the statute was insufficiently tailored. The Court did not even reach “whether the Act leaves open ample alternative channels of communication.” McCullen, 573 U.S. at 496 n.9.
The majority correctly observes that the First Amendment‘s protections “extend to the ‘right to choose a particular means or avenue of speech . . . in lieu of other avenues,‘” United Bhd., 540 F.3d at 969 (quoting Foti, 146 F.3d at 641), but section
The majority and Project Veritas both argue that recordings are unique in their
The majority‘s alternative-channels analysis is particularly concerning because it has no obvious limits. My colleagues suggest that their opinion will be cabined because they view section
IV.
“[G]enerally applicable laws do not offend the First Amendment simply because their enforcement against the press has incidental effects on its ability to gather and report the news.” Cohen v. Cowles Media Co., 501 U.S. 663, 669 (1991). In this case, we should simply sever the constitutionally suspect exceptions that Project Veritas challenges, and uphold the remainder of section
Appendix A
States allowing recording without providing notice to or obtaining consent from the recording‘s subjects when created in a place where the subjects lack a reasonable expectation of privacy:
Alabama:
Arizona:
Arkansas:
California:
Colorado:
Connecticut:
Delaware:
Florida:
Georgia:
Hawaii:
Idaho:
Illinois:
Iowa:
Kansas:
Louisiana:
Maine:
Maryland:
Michigan:
Minnesota:
Mississippi:
Nebraska:
Nevada:
New Hampshire:
New Jersey:
North Carolina:
North Dakota:
Ohio:
Oklahoma:
Pennsylvania:
Rhode Island:
South Carolina:
South Dakota:
Tennessee:
Texas:
Utah:
Virginia:
Washington:
West Virginia:
Wisconsin:
Wyoming:
States prohibiting recording without providing notice to or obtaining consent from the recording‘s subjects when created in a place where the subjects lack a reasonable expectation of privacy:
Alaska:
Kentucky:
Massachusetts:
Montana:
Oregon:
States without laws regarding the recording of in-person conversations:
Indiana, Missouri, New Mexico, New York, Vermont
Notes
- The recording is made while the officer is performing official duties;
- The recording is made openly and in plain view of the participants in the conversation;
- The conversation being recorded is audible to the person by normal unaided hearing; and
- The person [recording] is in a place where the person lawfully may be.
It shall be considered that it is the legislative intent, in the enactment of any statute, that if any part of the statute is held unconstitutional, the remaining parts shall remain in force unless:
- The statute provides otherwise;
- The remaining parts are so essentially and inseparably connected with and dependent upon the unconstitutional part that it is apparent that the remaining parts would not have been enacted without the unconstitutional part; or
- The remaining parts, standing alone, are incomplete and incapable of being executed in accordance with the legislative intent.