Court Dismisses Project Veritas First Amendment Challenge, Upholds Ban on Secret Recordings

The court found that the state’s conversational privacy statute does not violate Project Veritas’s free speech rights, as the group had argued.

A judges gavel rests on top of a desk in the courtroom in Miami, Fla., on Feb. 3, 2009. Joe Raedle/Getty Images

A federal appeals court for Oregon on Tuesday upheld a decades-old state law prohibiting most secret recordings of oral conversations, rejecting a First Amendment challenge by undercover journalist group Project Veritas.

In a 9–2 decision, the Ninth U.S. Circuit Court of Appeals in Seattle ruled that Oregon’s conversational privacy statute does not violate Project Veritas’s free speech rights, as the group had argued.

“The conversation privacy statute survived intermediate scrutiny as applied to Project Veritas,” U.S. Circuit Judge Morgan Christen wrote for the majority opinion.

“Oregon has a significant government interest in ensuring that its residents know when their conversations are recorded, the statute is narrowly tailored to that interest, and the statute leaves open ample alternative channels of communication for Project Veritas to engage in investigative journalism and to communicate its message.”

The statute at the center of the ruling dates back to 1959 and requires that notice be given to all persons before oral conversations may be recorded.

The law contains several exceptions that allow recordings of conversations during a felony that endangers human life, or when a law enforcement officer is performing official duties and certain conditions are met, among others.

Project Veritas had argued in a 2020 lawsuit that the privacy law violated its right to free speech and prevented its reporters from being able to record protests in Portland, the state’s largest city, following the May 2020 killing of George Floyd by a Minneapolis police officer.

The group further noted it relies primarily on secret audiovisual recordings to obtain stories of public interest about corruption, fraud, waste, and abuse.

The lawsuit listed Oregon Attorney General Ellen Rosenblum and District Attorney of Multnomah County, Oregon, Michael Schmidt, as defendants.

In its ruling, the court found that Oregon’s privacy statute is tailored to serve Oregon’s “significant interest in protecting conversational privacy” and “is content-neutral because it does not discriminate on the basis of viewpoint or restrict discussion of an entire topic.”

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“Rather it places neutral, content-agnostic limits on the circumstances under which an unannounced recording of a conversation may be made,” the court said.

“Project Veritas fails to show that any unconstitutional applications of the conversation privacy statute substantially outweighed its constitutional applications.”

Circuit Judge Kenneth Lee, who dissented, said Oregon’s “grossly overbroad” law “imperils the right to capture such abuses of power and other newsworthy events.”

“I respectfully dissent because Oregon’s law is grossly overbroad and not narrowly tailored to advance the state’s interest in conversational privacy (even assuming intermediate scrutiny applies),” Lee wrote.

Tuesday’s decision reverses a July 2023 ruling by a three-judge panel of the same court in favor of Project Veritas. That ruling, which struck down the law, was vacated when the 11-judge panel agreed to rehear the case.

In a statement on X on Tuesday, Project Veritas said the federal appeals court’s decision “is a setback in the fight for free speech and anti-corruption journalists.”

The group said it intends to lodge an appeal with the U.S. Supreme Court.

“The Ninth Circuit Court of Appeals has REVERSED our pivotal First Amendment win, bringing back the prohibition on undercover journalism in Oregon,” it said. “It’s clear our opponents want to criminalize undercover journalism and make it harder to expose wrongdoing in Oregon.”

The office of Oregon’s new attorney general, Dan Rayfield, did not respond to requests for comment by publication time.

Reuters contributed to this report.