Ninth Circuit Upholds Oregon’s Ban on Unannounced Audio Recordings, Rejects First Amendment Challenge

By V.R. Bohman and Cameron J. Schlagel

The U.S. Court of Appeals for the Ninth Circuit has affirmed the dismissal of a lawsuit brought by Project Veritas, a conservative activist group that engages in undercover journalism, challenging the constitutionality of an Oregon statute that prohibits unannounced recordings of oral conversations. The case, Project Veritas v. Schmidt, No. 22-35271, __ F.4th __ (9th Cir. 2025), raises significant First Amendment issues regarding the right to record matters of public interest and the protection of conversational privacy.

The Oregon statute, section 165.540(1)(c), makes it a crime to use a device to record a conversation unless all participants are specifically informed that their conversation is being recorded. The law includes some exceptions, such as for recording public or semi-public meetings, or recording a conversation involving a law enforcement officer performing official duties, if certain conditions are met. Project Veritas argued that the statute violates the First Amendment by restricting its ability to conduct undercover investigations of corruption and misconduct by public officials, police, and protesters in Oregon. It claimed that the statute is a content-based restriction on expression subject to strict scrutiny, because it requires an examination of the content of an unannounced recording to determine whether recording is lawful or unlawful. For example, to determine whether an audio recording is a lawful unannounced recording of a conversation involving a police officer performing their duties in public, one must listen to the content of the recording. Project Veritas also argued that the law is facially invalid as overbroad.

The Ninth Circuit, in a 10-2 en banc decision, rejected Project Veritas’s claims and affirmed the district court’s dismissal of the complaint. The court concluded that the statute is content neutral and survives intermediate scrutiny, and that Project Veritas failed to show that any unconstitutional applications of the statute substantially outweigh its constitutional applications.

Majority Opinion

The majority, in an opinion authored by Judge Christen, first holds that the act of recording conversations in connection with newsgathering activities is protected speech, because it is an act of speech creation that is intended to be, and would reasonably be understood to be, communicative. Relying on Circuit precedent affirming the right to record matters of public interest, the majority reasoned that the act of recording can be expressive even if it doesn’t involve expressive decisions or an external audience.

With that established, the majority next holds that the law is content neutral and subject to intermediate scrutiny, rather than strict scrutiny. In the majority’s view, although the statute requires some examination of content, it is nevertheless content neutral because it does not discriminate based on viewpoint or restrict discussion of an entire topic. Instead, the statute places content-agnostic limits on the circumstances under which an unannounced recording of a conversation may be made, and the statutory exceptions do not single out any topic or subject matter for differential treatment. As the Supreme Court explained in City of Austin v. Reagan National Advertising of Austin, LLC, 596 U.S. 61 (2022), a statute is not content based just because it requires some examination of content. To fall within this category, the law must confer benefits or impose burdens on speech because of its content. For instance, the sign code at issue in Reed v. Town of Gilbert, 576 U.S. 155 (2015) imposed varying restrictions on different types of signs based expressly on their communicative content. But Oregon’s statute, according to the majority, is justified without reference to the content of the regulated speech; its purpose is to protect conversational privacy, not to suppress a particular message or idea.

Applying intermediate scrutiny, the majority holds that the statute is narrowly tailored to serve Oregon’s significant interest in protecting conversational privacy, and leaves open ample alternative channels of communication for Project Veritas to engage in investigative journalism and to communicate its message. The majority recognizes that Oregon has a significant interest in protecting conversational privacy, which is rooted in the constitution and the common law, and extends to private conversations that occur in public or semi-public locations. It also recognizes the countervailing First Amendment interest in recording and reporting on matters of public concern, such as allegations of corruption and violent protests. It balances these interests and concludes that the statute is sufficiently narrow, because it imposes a relatively modest notice requirement, rather than an affirmative consent requirement. It also concludes that the statute leaves open ample alternative channels of communication, because it does not prohibit the plaintiffs from engaging in traditional tools of investigative reporting, such as talking with sources, reviewing records, or openly recording with notice.

Finally, the majority holds that the statute is not facially overbroad, because the plaintiffs did not show that any unconstitutional applications of the statute substantially outweigh its constitutional ones. The plaintiffs relied primarily on applications of the statute to their own speech, and otherwise made only passing references to other applications that they contend are unconstitutional, such as recording a loud argument on the street or a political provocateur on a subway. But the latter examples, according to the majority, do not establish a lopsided ratio of unlawful-to-lawful applications; the statute has a plainly legitimate sweep in protecting private conversations that may occur in public or semi-public places.

Concurring Opinion

Judge Bennett concurred in the judgment but wrote separately to express his disagreement with the majority’s application of the First Amendment to the act of recording, focusing on the notoriously foggy speech-conduct dichotomy. In Judge Bennett’s view, the statute on its face regulates conduct: the act of pressing a record button, secretly or openly, without announcement. The law allows for audio recording, just not secret recording. Recognizing that it is often difficult to draw a line between speech and conduct, Judge Bennett relies on Supreme Court cases that differentiate between conduct intended to convey a message (such as tattooing, flag burning, or wearing armbands) and purely mechanical, nonexpressive conduct (such as recording). In Judge Bennett’s view, contrary Ninth Circuit precedent holding that the recording process is itself expressive is unsupported by the text or history of the Free Speech Clause. Furthermore, the majority’s expansive view of speech would create constitutional problems for many laws that regulate conduct related to speech creation. When conduct is purely mechanical and by itself does not convey or contain a message, Judge Bennett reasons, it is not speech. That said, Judge Bennett ultimately agrees with the majority that Project Veritas’s facial challenge fails because the unconstitutional applications of the statute do not substantially outweigh the constitutional ones.

Dissenting Opinion

Judge Lee dissented, joined by Judge Collins. In their estimation, the statute is content-based and subject to strict scrutiny. The dissent points to the statute’s exceptions for recording law enforcement officers performing official duties and for recording felonies that endanger human life, and argues that these exceptions necessarily draw content-based distinctions based on the topic or content of the conversation recorded. It further distinguishes the statute from the sign code at issue in City of Austin, which did not target speech based on its communicative content, but rather regulated the placement of content. 

Applying strict scrutiny, the dissent would hold that the statute is not narrowly tailored to protect conversational privacy, because it sweeps in all sorts of public and newsworthy events in which no privacy interest is at stake, thus restricting more speech than necessary. Further, the law imposes a significant burden on speech by requiring an announcement that would distort the candid and authentic nature of the conversation, confiscating an important tool of journalism and newsgathering. In Judge Lee’s view, the government should not dictate how journalists can do their job, and that recording can capture rare moments of candor that may be more truthful, accurate, and newsworthy than other sources of information. 

Finally, according to the dissent, the statute’s content-based exceptions are not severable, and thus the entire statute must be struck down as unconstitutional. Relying on Oregon law to determine severability, the dissent concludes that the statute’s parts are so interconnected that it is unlikely that the state would have enacted the statute without the exceptions, or that the remaining parts are incomplete and cannot be executed in accordance with legislative intent. For instance, severing the law enforcement exception would create another constitutional deficiency, because it would violate the right to record law enforcement officers performing their official duties in public places. Likewise, severing the felony exception would not save the law, because the law would still prohibit recording matters of public interest.

Conclusion

The Ninth Circuit’s decision in Project Veritas presents a complex and divided analysis of the First Amendment issues concerning the right to record conversations. The three opinions offer different perspectives on the scope, standard, and application of the First Amendment protection for the act of recording, as well as on the content neutrality, narrow tailoring, and severability of the Oregon statute. The opinions also reflect different views on the balance between the state’s interest in conversational privacy and the plaintiffs’ interest in newsgathering and reporting.

The Ninth Circuit’s decision is likely to have a chilling effect on speech and journalism in Oregon, as it criminalizes a common and effective method of gathering and disseminating information of public interest. The decision is arguably in tension with decisions of other circuits that have addressed similar issues, such as the First Circuit’s decision in Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011), which held that the First Amendment protects the right to film government officials in public spaces. The decision may also conflict with First Amendment principles established by the Supreme Court in cases such as Bartnicki v. Vopper, 532 U.S. 514 (2001) and Citizens United v. Fed. Election Comm’n, 558 U.S. 310 (2010), which generally recognize the value of publishing truthful information about matters of public concern, meaning there must also be some corresponding protection of the right to obtain the information. Given the importance and complexity of the First Amendment issues, the division among the Ninth Circuit judges, and the potential circuit split, there is a reasonable possibility that the Supreme Court may grant certiorari to review the Ninth Circuit’s decision, if the plaintiffs decide to petition for it.