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Ninth Circuit:
Statute Barring Secret Audio-Recording Is Constitutional
Court, Sitting En Banc, Rejects Challenge by Media Group on First Amendment Grounds; Decision, Though Controversy Arises in Contention With Oregon Statute, Has Applicability to California’s Penal Code §632
By a MetNews Staff Writer
A statute barring the secret audio recording of conversations is not unconstitutional as applied to investigative reporters, the Ninth U.S. Circuit Court of Appeals held yesterday in an en banc decision.
Covert newsgathering is protected by the First Amendment, the majority acknowledged but, it declared, the state’s interest in protecting privacy prevails.
Although the court dealt with a challenge to an Oregon statute, the holding, by necessary implication, means that journalists in California are likewise barred from surreptitiously recording face-to-facecommunications in light of Penal Code §632. Subd. (a) of that statute says, in part:
“A person who, intentionally and without the consent of all parties to a confidential communication, uses an electronic amplifying or recording device to eavesdrop upon or record the confidential communication, whether the communication is carried on among the parties in the presence of one another or by means of a telegraph, telephone, or other device, except a radio, shall be punished by a fine not exceeding two thousand five hundred dollars ($2,500) per violation, or imprisonment in a county jail not exceeding one year, or in the state prison, or by both that fine and imprisonment.”
Oregon Statute
Section 165.540(l)(c) of the Oregon Revised Statutes provides that “a person may not...[o]btain or attempt to obtain the whole or any part of a conversation by means of any device, contrivance, machine, or apparatus,…if not all participants in the conversation are specifically informed that their conversation is being obtained,” the violation of which is a misdemeanor.
Eleven of the fulltime judges participated in deciding whether the challenge to the Oregon law by Project Veritas, a media organization that engages in underground journalism (and Project Veritas Action Fund), has merit. Circuit Judge Morgan Christen authored the majority opinion rebuffing arguments as to unconstitutionality, and was joined by Chief Judge Mary H. Murguia and Judges Kim McLane Wardlaw, Jennifer Sung, Gabriel P. Sanchez, Roopali H. Desai, Anthony D. Johnstone and Ana de Alba.
Circuit Judges Mark J. Bennett wrote a concurring opinion and Judge Kenneth K. Lee penned as dissent in which Judge Daniel P. Collins joined.
Christen’s Opinion
Christen wrote that “[a]pplying established First Amendment principles, we conclude that Project Veritas’s recording of conversations in connection with its newsgathering activities is protected speech within the meaning of the First Amendment,” elaborating:
“[B]ecause Project Veritas seeks to make newsworthy audio recordings that undoubtedly constitute protected expression, the act of making those recordings is protected speech for purposes of the First Amendment.”
Project Veritas said in its opening brief that it will “seldom inform others they are being recorded since such an announcement damages the truthfulness of what is to be recorded,” and Christen responded:
“At the pleading stage, we accept Project Veritas’s assertion that giving notice to conversation participants that they are being recorded may alter the contents of conversations in which Project Veritas’s reporters participate. Accordingly, we accept that Oregon’s conversational privacy statute burdens an act of speech creation in which Project Veritas seeks to engage.”
However, she also pointed to Oregon’s interest in protecting privacy. That interest, Christen found, preponderates, under the circumstances.
Project Veritas’s Contention
Project Veritas argued:
“Privacy is an important governmental interest that eavesdropping and wiretapping prohibitions are narrowly tailored to protect. But when someone—be it a Veritas journalist or anyone in Oregon—records his or her own conversation in secret or without specifically informing all parties, the privacy interests are minimal against the most compelling speech interest of capturing history as it is, or unfiltered dialogue.”
Christen responded:
“We cannot so easily discard Oregon’s interest in conversational privacy.”
She went on to say:
“We have no hesitation in concluding that secretly recording a conversation presents privacy concerns that are different in kind, and more corrosive, than merely having one’s oral communications heard and repeated. Recordings are uniquely reliable and powerful methods of preserving and disseminating information, but they are also uniquely reliable and powerful methods of invading privacy. Recordings may be made easily, stored indefinitely, disseminated widely, and played repeatedly. Recordings also may be selectively edited, presented without context, manipulated, and shared across the internet. Because an audio recording device reliably captures the sound that it detects, its usage may also create the illusion of objectivity, even where the recording omits critical context due to selective editing or recording. Thus, the transmission of an accurate recording may nevertheless obscure historical truth.”
Public Areas
Project Veritas noted that it “employs both open and secret audiovisual recording to investigate matters of public concern, sometimes—but not always—in areas open to the public.” It said that “[b]ut for section 165.540,” it would look into reports of possible corruption in Oregon government and “secretly record interactions” with persons in “(1) open-air cafes in Portland, (2) public parks, (3) on sidewalks, and (4) in other public areas.”
Christen said:
“But Oregon’s significant interest in protecting private conversations includes private conversations that occur in public or semi-public locations.”
She found lacking in significance that exceptions exist under Oregon law (as in California) for recording interactions with law enforcement officers or in obtaining documentation of the commission of certain felonies.
Traditional Newsgathering Techniques
The jurist pointed out:
“Project Veritas retains numerous alternative channels to engage in its journalistic speech activities. It may employ all the traditional tools of investigative reporting, including talking with sources, reviewing records, taking photographs, recording videos openly during public and semi-public meetings and events, recording videos that do not capture oral conversations, recording conversations after announcing it is doing so, and making use of Oregon’s freedom-of-information laws….
“Project Veritas may have its reporters go undercover and report on what they have seen and heard—without secretly recording its targets—as journalists have done for centuries.”
Bennett’s Concurrence
Bennett wrote that “the secret or unannounced audio recording of all conversations is not per se protected speech under the First Amendment,” adding:
“Thus, neither the text or the history of the First Amendment, nor Supreme Court precedent interpreting the Free Speech Clause, supports that the act of pressing an audio record button to record all conversations—either in secret or without announcement— is per se speech protected by the First Amendment. Our precedent also offers no persuasive reason to conclude otherwise.”
Lee, in his dissent, disagreed with Christen’s view that the statute in issue is narrowly tailored and said he would apply strict scrutiny, Christen used the intermediate scrutiny test, finding that the statute is content-neutral.
Lee’s Opinion
The dissenter wrote:
“…Oregon’s law is grossly overbroad and not narrowly tailored to advance the state’s interest in conversational privacy (even assuming intermediate scrutiny applies). Oregon prevents citizens from recording even in public areas if they do not announce that they are audiotaping. Oregon thus tramples on people’s ability to record and report on a large swath of public and newsworthy events. And because the law bans the taping of conversations where there is no reasonable expectation of privacy, Oregon’s statute is not narrowly tailored to further the state’s interest in conversational privacy.
“In any event, Oregon’s law should be subject to strict scrutiny, not intermediate scrutiny, because the statute is not content-neutral. The statute has a law-enforcement exception that allows citizens to legally record law enforcement officials—but no one else—without announcing that they are recording them. Oregon has essentially carved out only law enforcement matters from its ban on unannounced recording. Because this is a content-based restriction, strict scrutiny applies—and Oregon’s law must fall to the wayside.”
The case is Project Veritas v. Schmidt, 22-35271.
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