SEATTLE (CN) — Project Veritas, a conservative media organization known for its undercover-style work, argued before an en banc panel at the Ninth Circuit Court of Appeals Tuesday that an Oregon privacy law, which requires the consent of all parties to record conversations, tramples on the First Amendment rights of journalists and ordinary citizens.
The law is more strict than comparable laws in other states, most of which only require the consent of the person recording.
A three-judge panel for the Ninth Circuit struck down the recording ban on First Amendment grounds in June 2023. The panel ruled that the law’s exceptions, such as allowing secret video recordings or written recollections, undermined the state’s claimed interest in protecting conversational privacy.
The Ninth Circuit vacated the panel’s opinion and decided to rehear the case en banc.
The plaintiff’s attorney Benjamin Barr, arguing at the en banc hearing Tuesday, told the court that the law undermines important investigative journalism work. He said that the death of Eric Garner at the hands of police, as well as U.S. Supreme Court Justice Samuel Alito telling an investigative journalist that the country needed a return to “godliness,” along with former President Donald Trump’s infamous “Grab her by the pussy” remarks were only possible to document because of the work of surreptitious recording.
“These three examples, as well as the record built below, demonstrate that a journalist’s choice about who to record and how to do it implicate important First Amendment concerns,” Barr said.
The attorney said that the law needs to be changed to catch up with current technology. He said that recording someone in an open, public space should be no different than a journalist taking notes in a notepad at the same public space. Barr said that opinions expressed to others in conversation in public cannot be private.
U.S. Circuit Judge Morgan Christen, a Barack Obama appointee, said that there is a long history of successful investigative journalism without the help of “hidden gadgets.”
“Why can’t investigative reporters simply interview people, make their observations and report on what they saw or heard?” Christen said.
“Because it destroys the candidness,” Barr answered, before adding that it’s important for people to be able to surreptitiously record conversations to expose wrongdoing, such as a woman being sexually harassed by her boss who would not be believed without audio or video proof. He also cited the bystanders who recorded Derek Chauvin murdering George Floyd in 2020.
Benjamin Gutman, solicitor general of Oregon, told the panel that the First Amendment does not protect the right to secretly record conversations.
U.S. Circuit Judge Daniel Collins, a Donald Trump appointee, was incredulous at the broad nature of the statute.
“If it’s just two people having a loud political conversation, whatever conversation on the street and someone takes out a cell phone [to record] they’re a criminal in the state of Oregon?” Collins asked Gutman.
“If the participants in the conversation are not specifically informed? Correct,” Gutman replied.
Gutman explained that such a conversation would not be a public or semi-public meeting, so all participants would need to be informed.
“The reason for that is that I think there are two different aspects of privacy that we sometimes are conflating here. One is the privacy of not sharing information with somebody beyond the intended recipient. But the other is the aspect of privacy that involves individual autonomy to decide what audience you’re going to address. And there is a difference,” Gutman said.
Collins, still in disbelief, pressed the issue.
“And so taking a video of just an open public scene with people walking by is illegal in the state of Oregon. You think that it’s consistent with the First Amendment?” Collins asked.
“Yes,” Gutman answered, before conceding that a person would knowingly have to be filming another conversation for it to be a crime. He said exceptions applied for filming the police or for matters of great public interest, such as criminal activity or disasters.
U.S. Circuit Judge Roopali Desai, a Joe Biden appointee, asked Gutman what kind of test the en banc panel could adopt to determine what recordings would be allowed.
“I think that the test that the court could adopt would be that the First Amendment is triggered if the recording itself involves expressive conduct, and there’s sufficient intentionality in the way that the recording is being made, artistic choices in the way that the recording is being made, then that qualifies as expressive conduct,” Gutman said.
The panel took the matter under submission.