In a significant ruling on Tuesday, the 9th U.S. Circuit Court of Appeals upheld an Oregon law that bans most secret recordings of oral conversations, rejecting a First Amendment challenge from Project Veritas, a conservative activist group known for using covert recordings to expose its political opponents.
In a 9-2 decision, the court concluded that Oregon’s conversational privacy law does not violate free speech rights, asserting that the law serves a legitimate government interest in protecting residents’ privacy by ensuring they are aware when they are being recorded. The ruling reverses an earlier decision from July 2023, in which a divided three-judge panel had rejected the law.
The law, first enacted in 1959, generally prohibits the recording of private conversations without the consent of all parties involved. However, it includes exceptions, such as allowing recordings during the commission of a felony that endangers human life or when recording law enforcement officers performing official duties.
In its challenge, Project Veritas argued that the law infringed upon its ability to conduct undercover investigations, particularly in the context of documenting protests, such as those following the death of George Floyd in 2020. The organization, which is known for publishing edited recordings aimed at exposing the actions of liberal groups and media, contended that the law makes it impossible to operate effectively in Oregon’s largest city, Portland.
Writing for the majority, Circuit Judge Morgan Christen, an appointee of former President Barack Obama, emphasized the importance of safeguarding individuals’ privacy. She noted that while the law limits secret recordings, it does not hinder journalistic activities, such as undercover investigations, provided that journalists are not engaging in deceptive practices. The judge pointed out that “hidden mechanical contrivances” are not “indispensable tools” for newsgathering, citing examples from history, such as Nellie Bly’s undercover exposés, which achieved significant journalistic impact without reliance on secret recordings.
Judge Christen also raised concerns about the potential harms of unregulated secret recordings, including the spread of altered or deceptive audio through “deepfake” technology, which can mislead the public and harm individuals’ reputations.
In contrast, Circuit Judge Kenneth Lee, appointed by President Donald Trump, dissented, arguing that the law’s scope is overly broad and restricts journalists’ ability to report on important matters, including abuses of power or public events. He emphasized the chilling effect the law could have on news reporting, particularly in instances where conversations are held in public spaces and should be considered newsworthy.
Benjamin Barr, an attorney for Project Veritas, responded to the ruling by announcing plans to appeal the decision to the U.S. Supreme Court. Barr criticized the law’s limitations, arguing that it hampers investigative journalism and infringes upon the First Amendment’s protection of free speech. He stressed that covert recordings are essential tools for exposing corruption, much like traditional journalistic practices such as taking notes.
Dan Rayfield, Oregon’s newly appointed attorney general, expressed satisfaction with the court’s decision, calling the law “an important safeguard” for individuals’ privacy rights. Rayfield’s office argued that the law does not discriminate against any particular type of speech but seeks to balance privacy with freedom of expression.
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