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Court Rules Oregon Anti-Recording Law Unconstitutional Following James O’Keefe Lawsuit

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.

Oregon law 165.540, first enacted in 1955 and subsequently broadened to bar secret recording of conversations, is unconstitutional, said Judge Sandra Ikuta, a George W. Bush appointee writing for the majority in a 2–1 ruling by a Ninth Circuit panel.

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.

Many other states explicitly allow recording in public without consent, and five states have no laws in place regarding the matter.

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.”

1 Comment
  • Adam Young says:

    Digesting this decision validates that too often governmental laws are restrictions against Individual Rights. The government (as was my claim in my hometown paper 30 years ago) only has its self-interest to be an Empire (which owns more land than all the private citizens) unto itself funded by the excessive taxation upon workers.

    One only needs to recall the fact that the government exists from individuals. A government arises from a group of citizens (aka, society). This order of existence validates the natural law that citizens have rights above the government. Another proof of the secondary status of the government is found in the law about taxation.

    The government does not have the first right to anything since in 1953 the U.S. Supreme Court condone taxation to fund the government. That ruling demonstrates the government’s dependence on the individual worker. That dependence proves that the government is not the first body (entity) of society. Hence, its rights are secondary to the citizens who are the first body of society. The government is merely an established institution of society.

    Because the government is a massive bureaucracy, it often abuses the society in which it exists. We as a society must limit the size of the Deep State which is an Empire of Power that has never been elected to rule anyone. Our Government has hired the Deep State to be the unseen legislators and administrators of society. My point is that after the politicians get elected to be the government, the politicians hire bureaucrats (unelected Control Freaks) as the administrators (rulers) of society.
    Adam of CA.

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