Project Veritas Appeals Ninth Circuit Ban on Undercover Journalism; Argues Oregon Recording Laws are Unconstitutional

A panel of eleven judges on the United States Court of Appeals for the Ninth Circuit heard arguments today over the constitutionality of Oregon’s audio recording law. The law, unique among the states, requires everyone in almost any conversation in Oregon to be informed that it is being recorded for the recording to be legal. Project Veritas argued that the court should rule that the law is unconstitutional under the First Amendment to the U.S. Constitution as a violation of free speech. The large panel of judges, known as an “en banc” panel, reheard the case after a majority of a regular three-judge panel ruled that the law was unconstitutional last July.

“Because Project Veritas uncovers stories almost exclusively through secret recordings or other kinds of unannounced recordings, Oregon law poses a real problem,” said Benjamin Barr, lead counsel for Project Veritas. “Unlike the majority of states that allow citizens to record their own conversations or to record with the consent of just one party, Oregon imposes the obligation to specifically inform everyone in the conversation before recording. This makes effective undercover journalism illegal in the Beaver State.”

In its briefing, Project Veritas argued that the law’s exemptions that make it easier to record police officers and conversations during felonies that endanger human life made the law content-based and subject to the strictest constitutional scrutiny.

“The law makes it easier to capture police abuse but stifles the recording of other worthwhile subjects of investigative journalism,” said Barr. “If you record a corrupt city councilmember in Portland confessing to accepting a bribe without announcing it beforehand, it’s a crime. Of course, after you announce it you’ll never get that recording. The censorship is astounding.”

People for the Ethical Treatment of Animals (“PETA”), an animal rights group that has investigated slaughterhouses and facilities nationwide to uncover animal abuse, filed a “friend of the court” brief in support of Project Veritas’s claims.

“From the cries of animals captured during undercover investigations of factory farms, to secret recordings of political figures, when there is no other way to capture the true substance or gravity of important matters of public concern, the value of surreptitious audio recordings is an essential form of political speech," said Justin Marceau, co-author of Truth and Transparency: Undercover Investigations in the Twenty-First Century and faculty director of the Animal Activist Legal Defense Project, whic filed the amicus brief on behalf of PETA and free speech experts, including himself.

Project Veritas previously reported about the diverse group of organizations who filed amicus briefs in support of the Summer 2023 federal court ruling that struck down the unconstitutional ban on surreptitious recordings in Oregon.

Project Veritas argued that laws can be written to protect privacy and prevent eavesdropping without censoring free speech.

“This is not a case about real privacy,” said Barr. “When states go so far as to hinder most recordings even in public places, something other than privacy is at stake. Project Veritas stands by its First Amendment rights to use the most effective techniques to root out corruption and wrongdoing in public. We eagerly await a decision by the Ninth Circuit recognizing these concerns.”

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