Project Veritas v. Michael Schmidt

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PROJECT VERITAS; PROJECT No. 22-35271
VERITAS ACTION FUND,
D.C. No. 3:20-cv-
Plaintiffs-Appellants, 01435-MO
v.
OPINION
MICHAEL SCHMIDT, in his official
capacity as Multnomah County
District Attorney; ELLEN
ROSENBLUM, in her official
capacity as Oregon Attorney General,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Oregon
Michael W. Mosman, District Judge, Presiding
Argued and Submitted December 7, 2022
Pasadena, California
Filed July 3, 2023
Before: Carlos T. Bea, Sandra S. Ikuta, and Morgan
Christen, Circuit Judges.
2 PROJECT VERITAS V. SCHMIDT
Opinion by Judge Ikuta;
Dissent by Judge Christen
SUMMARY *
Civil Rights / First Amendment
The panel reversed the district court’s dismissal of a
complaint challenging, as an unconstitutional restriction of
protected speech, Section 165.540(1)(c) of the Oregon
Revised Code, which generally prohibits unannounced
recordings of conversations, subject to several exceptions.
Section 165.540(1)(c) of the Oregon Revised Statutes
provides that a person may not obtain or attempt to obtain
the whole or any part of a conversation by means of any
device if not all participants in the conversation are
specifically informed that their conversation is being
obtained. The law provides two exceptions relevant to this
appeal: (1) section 165.540(1)(c) does not apply to a person
who records a conversation during a felony that endangers
human life, Or. Rev. Stat § 165.540(5)(a); and (2) section
165.540(1)(c) allows a person to record a conversation in
which a law enforcement officer is a participant if the
recording is made while the officer is performing official
duties and meets other criteria. Plaintiff Project Veritas, a
non-profit media organization that engages in undercover
investigative journalism, states that it documents matters of
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
PROJECT VERITAS V. SCHMIDT 3
public concern by making unannounced audiovisual
recordings of conversations, often in places open to the
public.
Applying Animal Legal Def. Fund. v. Wasden, 878 F.3d
1184 (9th Cir. 2018), the panel held that section
165.540(1)(c) regulates protected speech (unannounced
audiovisual recording) and is content based because it
distinguishes between particular topics by restricting some
subject matters (e.g., a state executive officer’s official
activities) and not others (e.g., a police officer’s official
activities). As a content-based restriction, the rule fails strict
scrutiny review because the law is not narrowly tailored to
achieving a compelling governmental interest in protecting
conversational privacy with respect to each activity within
the proscription’s scope, which necessarily includes its
regulation of protected speech in places open to the public.
Thus, citing Cohen v. California, 403 U.S. 15, 21 (1971),
and Hill v. Colorado, 530 U.S. 703, 717 (2000), the panel
held that Oregon does not have a compelling interest in
protecting individuals’ conversational privacy from other
individuals’ protected speech in places open to the public,
even if that protected speech consists of creating audio or
visual recordings of other people. The panel further
determined that section 165.540(1)(c) burdens more speech
than is necessary to achieve its stated interest and there were
other ways for Oregon to achieve its interests of protecting
conversational privacy. Finally, addressing the dissent, the
panel determined that severing the exceptions that made the
general prohibition content based and extending the general
prohibition to those protected First Amendment activities,
would create significant constitutional issues rather than
cure them. Because section 165.540(1)(c) is not a valid
4 PROJECT VERITAS V. SCHMIDT
time, place, or manner restriction, it cannot be saved by
striking the two exceptions at issue here.
Dissenting, Judge Christen stated that because the
majority does not dispute that the State has a significant
interest in protecting the privacy of Oregonians who engage
in conversations without notice that their comments are
being recorded, the court’s analysis should be
straightforward. First, principles of federalism require that
the panel begin from a premise of reluctance to strike down
a state statute. Next, following Supreme Court precedent,
the panel should sever the two statutory exceptions that
Project Veritas challenges, apply intermediate scrutiny to the
content-neutral remainder, recognize that the statute is well-
tailored to meet Oregon’s significant interest, and uphold
section 165.540(1)(c) as a reasonable time, place, or manner
restriction. Judge Christen stated that the purpose Oregon
advances is its significant interest in protecting participants
from having their oral conversations recorded without their
knowledge. The majority recasts the State’s interest as one
in “protecting people’s conversational privacy from the
speech of other individuals.” That reframing of the
legislature’s purpose serves as the springboard for the
majority’s reliance on an inapplicable line of Supreme Court
authority that pertains to state action aimed at protecting
people from unwanted commercial or political speech, not
protection from speech-gathering activities like Project
Veritas’s, which are qualitatively different because they
appropriate the speech of others.
PROJECT VERITAS V. SCHMIDT 5
COUNSEL
Benjamin Barr (argued), Barr & Klein PLLC, Bull Valley,
Illinois; Stephen Klein, Barr & Klein PLLC, Washington,
D.C.; for Plaintiffs-Appellants.
Philip M. Thoennes (argued), Assistant Attorney General;
Michael A. Casper, Senior Assistant Attorney General;
Benjamin Gutman, Solicitor General; Ellen F. Rosenblum,
Attorney General of Oregon; Office of the Oregon Attorney
General; Salem, Oregon; for Defendants-Appellees.
OPINION
IKUTA, Circuit Judge:
Oregon law generally prohibits unannounced recordings
of conversations, subject to several exceptions. We
conclude that Oregon’s law is a content-based restriction that
violates the First Amendment right to free speech and is
therefore invalid on its face.
I
A
Section 165.540(1)(c) of the Oregon Revised Statutes
provides: “[A] person may not . . . [o]btain or attempt to
obtain the whole or any part of a conversation by means of
any device . . . if not all participants in the conversation are
specifically informed that their conversation is being
6 PROJECT VERITAS V. SCHMIDT
obtained.” Or. Rev. Stat. § 165.540(1)(c). 1 The statute
defines “[c]onversation” as “the transmission between two
or more persons of an oral communication which is not a
telecommunication or a radio communication, and includes
a communication occurring through a video conferencing
program.” Or. Rev. Stat. § 165.535(1). Because this section
explicitly applies to the recording of a video conference and
bars individuals from obtaining a conversation “by means of
any device,” it applies to both audio and video recordings of
a conversation. Indeed, the Oregon courts have interpreted
the statute as applicable to video recordings of conversations
and other conduct. 2 See State v. Copeland, 522 P.3d 909,
911–12 (Or. Ct. App. 2022) (applying section 165.540(1)(c)
to “the video and audio recording of [a] shooting taken by
the victim on his body camera”). 3
1
Oregon is one of a few outliers in enforcing such a broad prohibition
on unannounced recordings of conversations. Only five states, including
Oregon, prohibit individuals from making recordings without providing
notice to or obtaining the consent of the recording’s subjects in a place
open to the public where the subjects lack a reasonable expectation of
privacy. See Appendix A.
2
Because both the statutory text and judicial opinions confirm that
section 165.540(1)(c) applies to video recordings of conversations, the
dissent’s assertion that “the statute does not sweep in . . . video
recordings” is incorrect. Dissent at 59.
3
Contrary to the dissent’s argument that section 165.540(1)(c) applies
only to oral communications, Dissent at 48 n.6, Copeland did not
differentiate between the video recording of a “heated discussion,” 522
P.3d at 911, and the video recording of a shooting, id. at 912 (noting that
“[t]he state sought to introduce the video and audio recording of the
shooting taken by the victim on his body camera”).
PROJECT VERITAS V. SCHMIDT 7
This general rule is subject to numerous exceptions. See
Or. Rev. Stat. § 165.540(2)–(7), (9). 4 Two are relevant here.
First, section 165.540(1)(c) does not apply to a “person who
records a conversation during a felony that endangers human
life.” Id. § 165.540(5)(a). This exception applies even if the
recording “was initiated before the felony began.”
Copeland, 522 P.3d at 912. Second, section 165.540(1)(c)
allows “[a] person [to] record[] a conversation in which a
law enforcement officer is a participant” if the recording is
“made while the officer is performing official duties” and
meets other criteria. 5 Or. Rev. Stat. § 165.540(5)(b). The
Oregon courts have not yet interpreted this exception.
4
The statute provides that section 165.540(1)(c) does not apply to: (1)
“subscribers or members of their family who perform the acts prohibited
in [§ 165.540(1)] in their homes,” Or. Rev. Stat. § 165.540(3); (2)
“[p]ublic officials in charge of and at jails, police premises,” and “other
penal or correctional institutions,” id. § 165.540(2)(a)(B); or (3) persons
who use unconcealed recording devices to “intercept oral
communications that are part of” specified “[p]ublic or semipublic
meetings,” “[r]egularly scheduled classes or similar educational
activities in public or private institutions,” or “[p]rivate meetings or
conferences if all [participants] knew or reasonably should have known
that the recording was being made,” id. § 165.540(6).
5
The exception from section 165.540(1)(c) applies only if:
(A) The recording is made while the officer is performing
official duties;
(B) The recording is made openly and in plain view of the
participants in the conversation;
(C) The conversation being recorded is audible to the
person by normal unaided hearing; and
8 PROJECT VERITAS V. SCHMIDT
The general rule in section 165.540(1)(c) and the two
relevant exceptions to the rule evolved over a lengthy period
of time. According to the Oregon Supreme Court, the state
legislature first enacted section 165.540(1)(a) in 1955 “to
allow the police to record telephone conversations when one
party consents to the recording.” State v. Lissy, 747 P.2d
345, 347–49, 347 n.3 (Or. 1987). In 1959, the legislature
amended section 165.540 to add section 165.540(1)(c),
which prohibited tape recording of face-to-face
conversations without all participants’ consent. Id. at 350 &
n.4. Twenty years later, in 1979, some legislators attempted
to amend this provision because of concerns “that a person
who tape records a public meeting, public speech or
classroom lecture without ‘specifically informing’ all
participants that the discussion is being taped is guilty of a
Class C felony.” Id. at 351 (citation omitted). This effort to
amend the law failed. See id.But in 1989, legislators succeeded in making an
exception to section 165.540(1)(c) for felonies endangering
human life, resulting in section 165.540(5)(a). Or. Rev. Stat.
§ 165.540(5)(a) (1989). According to the legislative history
of this amendment, the change was made to enable police
officers to use a body wire to record a “situation [that]
involves [a] felony where drugs are involved or human life
is endangered” without first obtaining a court order. A-
Engrossed H.B. 2252, 65th Assemb., Reg. Sess. 1 (Or.
1989); see also Or. H.R. Staff Measure Summary, H.B. 2252,
(D) The person [recording] is in a place where the person
lawfully may be.
Or. Rev. Stat. § 165.540(5)(b). “Law enforcement officer” is generally
defined as a person authorized to enforce criminal laws. Id.§§ 133.726(11); 165.540(10)(b).
PROJECT VERITAS V. SCHMIDT 9
65th Assemb., Reg. Sess. (Or. 1989) (“This measure would
eliminate the requirement that police officers obtain prior
court approval before using a ‘body wire’ where felony drug
offenses or life-endangering felonies are being
committed.”); Hearing on H.B. 2250, 2251, 2252 Before the
Subcomm. on Crime & Corrs. of the H. Comm. on the
Judiciary, 65th Assemb., Reg. Sess. 11–12 (Or. 1989)
(statement of Cap. Will Hingston, Or. State Sheriffs’ Ass’n)
(stating that section 165.540 “causes a great deal of concern
for officer safety and informant safety during a narcotics
transaction” because “there is little consistency in obtaining
a court order for a body wire before a transaction goes
down,” and the “amendment will afford officers in their
performance a great deal more safety and rapid support when
doing a narcotics transaction”).
In 2015, the legislature added another exception to
section 165.540(1)(c) to allow a person to record a
conversation in which a law enforcement officer is a
participant, resulting in section 165.540(5)(b). Or. Rev. Stat.
§ 165.540(5)(b) (2015). According to testimony by the
ACLU submitted to the state judiciary committee in support
of this amendment, this change was necessary because
otherwise the statute was “inconsistent with the vast and
developing consensus among courts and legal scholars
confirming that the right to record on-duty police is
constitutionally protected.” Hearing on H.B. 2704 Before
the H. Comm. on the Judiciary, 78th Assemb., Reg. Sess. 1
(Or. 2015) (testimony of Kimberly McCullough, ACLU
Leg. Dir.). The ACLU further testified that “because it is
common knowledge that the public has a right to record on-
duty police, people all over Oregon are unintentionally
violating Oregon’s eavesdropping statute when they openly
record without a warning.” Hearing on H.B. 2704 A Before
10 PROJECT VERITAS V. SCHMIDT
the S. Comm. on the Judiciary, 78th Assemb., Reg. Sess. 1
(Or. 2015) (testimony of Kimberly McCullough, ACLU
Leg. Dir.).
B
Project Veritas is a non-profit media organization that
engages in undercover investigative journalism. Project
Veritas stated that it documents matters of public concern by
making unannounced audiovisual recordings of
conversations, often in places open to the public. In the past,
Project Veritas journalists have used undercover recordings
to document the “Unite the Right” rally in Charlottesville,
Virginia, to record campaign workers for presidential
candidates, to capture the efforts of campaign staff to stir up
violence at rallies of the opposing candidate, and to
interview the staff for a gubernatorial candidate who
confirmed the candidate’s more controversial views and
efforts to conceal them.
Project Veritas stated that it would conduct similar
investigations in Oregon but for Oregon’s prohibition on
unannounced in-person audiovisual recordings. Among
other things, Project Veritas alleged it would investigate
corruption at the state agency responsible for enforcing
Oregon’s public records law by recording undercover
interviews with officers and staff in locations open to the
public, like restaurants, parks, and sidewalks. In addition,
Project Veritas alleged it would investigate the “rise in
violent protests in Portland between the police and members
of Antifa and other” groups by secretly recording
interactions between police officers and protesters. Project
Veritas would also send undercover journalists into groups
of police and protesters to engage them in conversation and
record their candid remarks. Outside of organized rallies,
PROJECT VERITAS V. SCHMIDT 11
Project Veritas would “do most of its [undercover] recording
on public sidewalks, public parks, or in other areas held open
to the public.” Project Veritas alleged that the safety and
even lives of its journalists would be endangered if they were
to record conversations openly and in plain view or to inform
participants that they are being recorded.
Project Veritas sued the Oregon Attorney General, Ellen
Rosenblum, and the District Attorney of Multnomah
County, Oregon, Michael Schmidt (collectively, Oregon),
challenging section 165.540 as an unconstitutional
restriction of protected speech. Project Veritas’s complaint
alleged that because section 165.540 favored recording some
subjects, but disfavored others, the differential treatment
rendered section 165.540(1)(c) and its exceptions
unconstitutional. For instance, the complaint alleged that
under Oregon law, an individual could record the police in
particular circumstances, see Or. Rev. Stat. § 165.540(5)(b),
and make a “secret audio recording” during a felony that
endangers human life, see id. § 165.540(5)(a), but “may not
openly record the conversations of city council members,
school board members, or any other government actors
without specifically notifying them,” see id. § 165.540(5)(b).
Project Veritas sought to enjoin defendants from enforcing
section 165.540(1)(c) and to obtain a declaratory judgment
that the law is unconstitutional on its face and as applied to
Project Veritas.
Oregon moved to dismiss the complaint. The district
court partially granted the motion, and the parties agreed to
12 PROJECT VERITAS V. SCHMIDT
dismiss the remaining claims with prejudice. 6 Project
Veritas timely appealed.
II
We review de novo a district court’s dismissal of a
complaint for failure to state a claim. See In re Cutera Sec.
Litig., 610 F.3d 1103, 1107 (9th Cir. 2010). “[W]e have an
independent obligation to ensure that we have subject matter
jurisdiction,” which includes a determination that Project
Veritas has standing to bring its pre-enforcement claim.
Airline Serv. Providers Ass’n v. L.A. World Airports, 873
F.3d 1074, 1078 (9th Cir. 2017).
Project Veritas’s allegations are sufficient to establish
standing for a First Amendment pre-enforcement claim.
Under Article III of the Constitution, plaintiffs must
establish “the irreducible constitutional minimum of
standing,” by showing that they suffered an injury in fact,
that there is “a causal connection between the injury and the
conduct complained of,” and that it is likely that “the injury
will be redressed by a favorable decision.” Lujan v. Defs. of
Wildlife, 504 U.S. 555, 560–61 (1992) (citations and
quotation marks omitted). “Because constitutional
challenges based on the First Amendment present unique
standing considerations, plaintiffs may establish an injury in
fact without first suffering a direct injury from the
challenged restriction.” Lopez v. Candaele, 630 F.3d 775,
785 (9th Cir. 2010) (cleaned up). In a pre-enforcement
6
Project Veritas’s complaint challenged sections 165.540(1)(c) (making
unannounced recordings), 165.540(1)(d) (obtaining such recordings
from others), and 165.540(1)(e) (distributing such recordings). The
district court denied Oregon’s motion to dismiss with respect to Project
Veritas’s section 165.540(1)(d) and (1)(e) claims, but the parties later
agreed to dismiss those claims with prejudice.
PROJECT VERITAS V. SCHMIDT 13
challenge, plaintiffs can show injury in fact by establishing
that (1) they intend to violate the law; and (2) have shown a
reasonable likelihood that the government will enforce the
statute against them. Id.For purposes of this pre-enforcement challenge, Project
Veritas makes a clear showing of injury in fact. First, Project
Veritas alleged that but for section 165.540(1)(c), it would
make unannounced recordings of conversations in a manner
that would violate the general prohibition and not fall within
an exception, and described in great detail the persons,
conversations, and events it would like to record. See supra
p. 10–11. For its part, Oregon has prosecuted individuals for
violating section 165.540(1)(c) in the past 7 and does not state
that it would refrain from prosecuting Project Veritas for
creating such recordings, if the recordings were made in
violation of the law. Finally, Project Veritas alleged a causal
connection between the challenged statute and its inability
to carry on its undercover journalistic endeavors and that it
is likely that its injury will be redressed by a favorable
decision. 8
We reject Oregon’s arguments that we lack jurisdiction
because Project Veritas asserts an as-applied challenge
which is not ripe. Project Veritas’s claim is properly
construed as a facial challenge to section 165.540. “A facial
challenge is an attack on a statute itself as opposed to a
7
See, e.g., State v. Neff, 265 P.3d 62, 63 (Or. Ct. App. 2011); State v.
Depeche, 255 P.3d 502, 503–04 (Or. Ct. App. 2011); State v. Bichsel,
790 P.2d 1142, 1143 (Or. Ct. App. 1990); State v. Knobel, 777 P.2d 985,
987 (1989).
8
Because we conclude that section 165.540(1)(c) is facially
unconstitutional, we do not evaluate Project Veritas’s alternative
challenge that the statute is overbroad.
14 PROJECT VERITAS V. SCHMIDT
particular application,” City of Los Angeles v. Patel, 576
U.S. 409, 415 (2015), while “[a]n as-applied challenge
contends that the law is unconstitutional as applied to the
litigant’s particular speech activity, even though the law may
be capable of valid application to others,” Foti v. City of
Menlo Park, 146 F.3d 629, 635 (9th Cir. 1998). Here,
Project Veritas attacks the statute itself as an
unconstitutional regulation of unannounced recordings of
nearly all conversations held in places open to the public—
not only those conversations that Project Veritas seeks to
record. 9
III
The First Amendment, applicable to the States through
the Fourteenth Amendment, provides that “Congress shall
make no law . . . abridging the freedom of speech.” U.S.
CONST. amend I. “While the First Amendment literally
forbids the abridgment only of speech, the Supreme Court
has long recognized that its protection does not end at the
spoken or written word.” United States v. Swisher, 811 F.3d
299, 310 (9th Cir. 2016) (cleaned up) (citation and quotation
marks omitted). We have recognized there is no material
“distinction between the process of creating a form of pure
speech (such as writing or painting) and the product of these
processes (the essay or artwork) in terms of the First
Amendment protection afforded.” Anderson v. City of
Hermosa Beach, 621 F.3d 1051, 1061 (9th Cir. 2010).
Indeed, “we have never seriously questioned that the
processes of writing words down on paper, painting a
9
Because we must analyze section 165.540(1)(c) with respect to the full
scope of its prohibition, it is irrelevant that “Project Veritas seeks to
record only in public places” or “avers only that most of its recording
will occur in public places.” Dissent at 49.
PROJECT VERITAS V. SCHMIDT 15
picture, and playing an instrument are purely expressive
activities entitled to full First Amendment protection.” Id.
at 1062.
A
Here, the state law at issue regulates individuals’ conduct
in making an audio or video recording. Under our case law,
such conduct qualifies as speech entitled to the protection of
the First Amendment. See Animal Legal Def. Fund. v.
Wasden, 878 F.3d 1184, 1203–04 (9th Cir. 2018).
Wasden involved “a secretly-filmed exposé of the
operation of an Idaho dairy farm,” which showed dairy
workers who “dragg[ed] a cow across the ground by a chain
attached to her neck; twist[ed] cows’ tails to inflict
excruciating pain; and repeatedly beat[], kick[ed], and
jump[ed] on cows to force them to move.” Id. at 1189. This
2012 exposé distributed by an animal rights group, Mercy
for Animals, resulted in the Idaho legislature enacting a
statute targeting undercover investigation of agricultural
operations, which criminalized, among other things, “a
person from entering a private agricultural production
facility and, without express consent from the facility owner,
making audio or video recordings of the ‘conduct of an
agricultural production facility’s operations.’” Id. at 1203(citation omitted). The statute defined its scope broadly and
did not exclude audio or video recordings of conversations.
See id. In enacting the law, members of the Idaho legislature
“discussed the bill as protecting against two types of
perceived harm to agricultural producers,” specifically:
“concerns about farm security and privacy” and concerns
about damage caused by investigative reporting itself. Id. at
1192. One legislator “described the[] videos as used . . .
16 PROJECT VERITAS V. SCHMIDT
‘publicly [to] crucify a company’ and ‘as a blackmail tool.’”
Id.After noting the “tension between journalists’ claimed
First Amendment right to engage in undercover
investigations and the state’s effort to protect privacy and
property rights,” id. at 1190, we held that the animal rights
activist’s conduct—creating an unannounced recording—
was constitutionally protected First Amendment speech, id.at 1203–04. Wasden reached this conclusion in two steps.
First, Wasden extended our prior ruling that “there is ‘a
First Amendment right to film matters of public interest,’”
id. at 1203 (emphasis added) (citing Fordyce v. City of
Seattle, 55 F.3d 436, 439 (9th Cir. 1995), to hold that “[t]he
act of recording is itself an inherently expressive activity”
protected by the First Amendment, id. (emphasis added).
We reasoned that audio and video recordings require
“decisions about content, composition,” and the like, which
decisions are just as expressive as “the written word or a
musical score” ultimately disseminated to the public. Id.“Because the recording process is itself expressive and is
‘inextricably intertwined’ with the resulting recording, the
creation of audiovisual recordings is speech entitled to First
Amendment protection as purely expressive activity.” Id. at
1204 (citation omitted).
Second, given that the act of recording is protected
speech, Wasden held that the statute’s prohibition of
recording “the conduct of an agricultural production
facility’s operations” without “express consent from the
facility owner” constituted a regulation of a form of
PROJECT VERITAS V. SCHMIDT 17
protected speech, which triggered First Amendment
scrutiny. Id. at 1203–04.10
Applying Wasden’s conclusion here, section
165.540(1)(c) prohibits making audio and visual recordings
unless all participants in the conversation are informed of the
recording. Under Wasden, the recording itself is protected
speech, and therefore the Oregon statute constitutes a
regulation of protected speech. We conclude that section
165.540(1)(c) triggers First Amendment scrutiny.
B
Because we must determine the constitutionality of
section 165.540(1)(c) under the First Amendment, we next
turn to the question whether it is content based or content
neutral. See Reed v. Town of Gilbert, 576 U.S. 155, 163
(2015). A law is content based if it “single[s] out any topic
or subject matter for differential treatment.” City of Austin
v. Reagan Nat’l Ad. of Austin, LLC, 142 S. Ct. 1464, 1472
(2022).
10
Wasden’s conclusion is consistent with our sister circuits, which have
held that creation of audio and video recordings constitutes First
Amendment-protected speech. See, e.g., People for the Ethical
Treatment of Animals, Inc. v. North Carolina Farm Bureau Fed’n, Inc.,
60 F.4th 815, 821–23 (4th Cir. 2023) (rejecting argument that the
creation of unauthorized recordings of “images or sound occurring
within an employer’s premises” as part of undercover investigations
conducted by PETA to publicize animal cruelty was not speech protected
by the First Amendment); Am. C.L. Union of Illinois v. Alvarez, 679 F.3d
583, 595 (7th Cir. 2012) (“The act of making an audio or visual recording
is necessarily included within the First Amendment’s guarantee of
speech and press rights.”); Smith v. City of Cumming, 212 F.3d 1332,
1333 (11th Cir. 2000) (holding that “[t]he First Amendment protects the
. . . right to record matters of public interest”).
18 PROJECT VERITAS V. SCHMIDT
1
Wasden again guides our analysis. After holding that the
creation of audio and video recordings was speech entitled
to full First Amendment protection, Wasden held that the
Idaho statute at issue in that case, which required the facility
owner’s consent to make unannounced recordings of “the
conduct of an agricultural production facility’s operations,”
was “an ‘obvious’ example of a content-based regulation of
speech because it ‘defin[es] regulated speech by particular
subject matter.’” 878 F.3d at 1204 (citing Reed, 576 U.S. at
163). We gave two reasons for this conclusion. First, the
statute drew “a distinction ‘on its face’ regarding the
message the speaker conveys.” Id. (citing Reed, 576 U.S. at
165). Specifically, it “would permit filming a vineyard’s art
collection but not the winemaking operation.” Id.
“Likewise, a videographer could record an after-hours
birthday party among co-workers, a farmer’s antique car
collection, or a historic maple tree but not the animal abuse,
feedlot operation, or slaughterhouse conditions.” Id.
Second, we reasoned that “only by viewing the recording can
the [state] authorities make a determination about criminal
liability” because the application of the exception “explicitly
pivots on the content of the recording.” Id.
Our second rationale (that a law regulating the act of
making specified recordings is content based if state
authorities cannot apply the law without viewing or listening
to the particular recording at issue) requires some further
examination. After we decided Wasden, the Supreme Court
rejected a per se rule “that a regulation cannot be content
neutral if it requires reading the [speech] at issue.” City of
Austin, 142 S. Ct. at 1471. Instead, City of Austin held that
location-based rules, such as a rule differentiating between
signs on a premise that advertise an on-site business from
PROJECT VERITAS V. SCHMIDT 19
signs that advertise some off-site matter, are not content
based, even though city authorities had to review the sign’s
message to apply the rule. Id. at 1472. When a rule is merely
a “location-based and content-agnostic on-/off-premises
distinction,” it does not “singl[e] out specific subject matter
for differential treatment.” Id. at 1475 (citation omitted).
Instead, the sign’s message merely “informs the sign’s
relative location.” Id. at 1473. But as the Court clarified,
this exception for location-based rules does not affect the
Court’s longstanding holding that “regulations that
discriminate based on the topic discussed or the idea or
message expressed . . . are content based.” Id. at 1474
(citation and quotation marks omitted).
Wasden did not address a location-based rule akin to an
“on-/off-premises distinction,” but considered a rule that
singled out “specific subject matter for differential
treatment” and discriminated based on “the topic discussed
or the idea or message expressed.” Id. at 1474–75. As a
result, City of Austin’s analysis does not conflict with our
holding in Wasden, which remains binding. See Miller v.
Gammie, 335 F.3d 889, 893 (9th Cir. 2003) (holding that a
three-judge panel is bound by precedent unless it “is clearly
irreconcilable with the reasoning or theory of intervening
higher authority”). Therefore, we continue to consider
whether a law “pivots on the content of the recording,”
Wasden, 878 F.3d at 1204, in determining whether the law
discriminates on the basis of “the topic discussed or the idea
or message expressed” and is, therefore, content based, City
of Austin, 142 S. Ct. at 1474 (citing Reed, 576 U.S. at 171).
Applying Wasden here, section 165.540 is a content-
based restriction on speech. On its face, section
165.540(1)(c) and its exceptions draw a distinction between
topics. The speech regulated by section 165.540(1)(c) is the
20 PROJECT VERITAS V. SCHMIDT
act of making a recording, which means that the activity
captured by a recording constitutes the content or subject
matter of that speech. Because the rules imposed by section
165.540 vary depending on the activity being recorded, the
statute clearly draws content-based distinctions under
Wasden. The law’s applicability plainly “pivots on the
content of the recording”—namely, what the recording
captures. Wasden, 878 F.3d at 1204. For example, the law
applies no restrictions to recording law enforcement officials
engaged in their official duties, see Or. Rev. Stat.
§ 165.540(5)(b), but prohibits recording other government
officials performing official duties unless they are informed
that their conversation is being recorded. Similarly, the
statute distinguishes between recording felonies
endangering human lives, id. § 165.540(5)(a), and recording
similar conduct during the commission of a misdemeanor.
These distinctions are “obvious” examples of a content-
based regulation of speech because they “define regulated
speech by particular subject matter.” Wasden, 878 F.3d at
1204 (cleaned up) (citation omitted). In addition, state
“authorities [can] make a determination about criminal
liability” under the law “only by viewing the recording.” Id.This serves as further evidence that the applicability of
section 165.540(1)(c) pivots on the content of the recording,
thereby demonstrating that the law is content based.
2
Oregon argues that section 165.540(1)(c)’s general
prohibition on the act of making unannounced recordings is
a content-neutral speech regulation for two reasons. Neither
is persuasive.
Oregon first argues that the statute is content neutral
because the statute’s exceptions are not based on the words
PROJECT VERITAS V. SCHMIDT 21
spoken and recorded, and therefore state authorities do not
have to listen to and analyze the recording to determine
whether an exception applies. We disagree. The statute at
issue in Wasden did not distinguish based on the words
spoken in a recording, but we nevertheless held that it was
content based because it discriminated on the basis of subject
matter to be recorded. 878 F.3d at 1204. For the same
reason, it is the statute’s differential treatment of recordings
based on their subject matter (e.g., whether the speaker’s
recording obtains the conversation of Oregon police officers
or Oregon executive officers) that makes the statute content
based, not the words exchanged in the conversation.
Second, Oregon argues that we can consider section
165.540(1)(c) as a stand-alone provision, and ignore the
exceptions to the general prohibition. But this approach is
foreclosed by binding precedent. To start, it is well-
established that when a court evaluates the constitutionality
of a general prohibition, it must consider any exceptions to
the general rule. “[A] rule [is] content-based when it
establishes a general ban on speech, but maintains
exceptions for speech on certain subjects.” Glendale
Assocs., Ltd. v. NLRB, 347 F.3d 1145, 1155 (9th Cir. 2003).
Stated differently, where exceptions to a restriction of
protected speech “are based on content, the restriction itself
is based on content.” Nat’l Ad. Co. v. City of Orange, 861
F.2d 246, 249 (9th Cir. 1988) (citation omitted); see also
Barr v. Am. Ass’n of Pol. Consultants, Inc., 140 S. Ct. 2335,
2347 (2020) (plurality opinion) (holding that a prohibition of
robocalls was content based due to its exception for
robocalls collecting government held debts); Foti, 146 F.3d
at 636 (holding that an ordinance’s general ban of “all signs
on all public property” was content based due to its
22 PROJECT VERITAS V. SCHMIDT
“exemptions for open house signs and safety, traffic, and
public informational signs”).11
Moreover, any exception to a general restriction on
protected speech—even if the exception applies to speech
that our case law has recognized as receiving First
Amendment protection, like recording police officers
performing official duties in public, see Fordyce, 55 F.3d at
439; Askins v. U.S. Dep’t of Homeland Sec., 899 F.3d 1035,
1044 (9th Cir. 2018)—necessarily renders the restriction
content based. The Supreme Court analyzed a similar
situation in Reed, where the challenged state law generally
restricted the display of outdoor signs without a permit, but
exempted signs that had ideological and political messages,
which implicate speech that case law has recognized as
receiving First Amendment protection. 576 U.S. at 164–65.
Despite these exceptions, the Court held that the law as a
whole was content based and subject to strict scrutiny,
“regardless of the government’s benign motive, content-
neutral justification, or lack of ‘animus toward the ideas
11
The district court concluded that the law enforcement exception did
not render section 165.540(1)(c) content based because recordings of
“conversations where a law enforcement officer is a speaker” is
“government speech,” which “is generally not subject to First
Amendment challenges.” Oregon does not rely on this argument, and
we conclude the government speech doctrine is not applicable here.
Although the Supreme Court has held that a government entity’s
expression of its own views does not violate the speech rights of
individuals who disagree, see Pleasant Grove City v. Summum, 555 U.S.
460, 467 (2009), this case does not involve a suit against the government
for expressing its views. Rather, it involves a statute that impinges on a
private individual’s speech by restricting the ability to record public
officials. The individual engaging in the speech being regulated is the
private party that makes the recording—not the government. Therefore,
the government speech doctrine is inapposite.
PROJECT VERITAS V. SCHMIDT 23
contained’ in the regulated speech.” Id. at 165 (citation
omitted). Therefore, under this precedent, we must analyze
both the general prohibition and the exceptions as one
regulatory regime. Doing so makes clear that section
165.540 is a content-based regulation of speech.12
C
Because we conclude that section 165.540(1)(c) and its
exceptions constitute a content-based speech restriction, we
can uphold the statute only if it survives strict scrutiny. See
Wasden, 878 F.3d at 1204. Strict scrutiny requires the
government to show that the speech restriction is “narrowly
tailored to address the State’s compelling governmental
interests.” Victory Processing, LLC v. Fox, 937 F.3d 1218,
1229 (9th Cir. 2019). Under strict scrutiny, the challenged
law must be constitutional with respect to “each activity
within the proscription’s scope.” Berger v. City of Seattle,
569 F.3d 1029, 1053 (9th Cir. 2009) (citing Frisby v. Schultz,
487 U.S. 474, 485 (1988)). It does not matter that a narrower
restriction on speech activities could have been justified by
the government’s interest. See Watchtower Bible & Tract
Soc’y of N.Y., Inc. v. Village of Stratton, 536 U.S. 150, 168
(2002). For instance, a law that generally prohibits
canvassers from engaging in door-to-door advocacy without
a permit is facially unconstitutional. Id. Although the
government’s “interest in preventing fraud could adequately
support the ordinance insofar as it applies to commercial
transactions and the solicitation of funds,” the interest in
fraud prevention does not justify the ordinance insofar as it
12
The dissent concedes that the statutory exceptions to the general ban
on unannounced recordings render section 165.540 content based.
Dissent at 50.
24 PROJECT VERITAS V. SCHMIDT
applies “to [Jehovah Witnesses who offer religious
literature], to political campaigns, or to enlisting support for
unpopular causes.” Id.In Wasden, we applied strict scrutiny to the content-
based Idaho statute. 878 F.3d at 1204. We assumed that
Idaho’s asserted interest in protecting both property and
privacy interests in an agricultural production facility was a
compelling government interest, see id., but concluded that
Idaho had not satisfied the narrow tailoring requirement
because, among other reasons, there were “various other
laws at Idaho’s disposal that would allow it to achieve its
stated interests while burdening little or no speech,” id. at
1205 (cleaned up) (citation and quotation marks omitted).
“For example, agricultural production facility owners can
vindicate their rights through tort laws against theft of trade
secrets and invasion of privacy.” Id. And, as another
example, “[t]o the extent the legislators expressed concern
that fabricated recordings of animal abuse would invade
privacy rights, the victims can turn to defamation actions for
recourse.” Id. Further, we explained, “‘the remedy for
speech that is false is speech that is true’—and not, as Idaho
would like, the suppression of that speech.” Id. (cleaned up)
(citation omitted). Therefore, we struck down Idaho’s ban
on creating audio and visual recordings as failing to survive
First Amendment scrutiny. Id.Applying strict scrutiny to section 165.540(1)(c) in light
of these precedents, we must consider whether that section
is constitutional with respect to “each activity within the
proscription’s scope,” Berger, 569 F.3d at 1053, which
necessarily includes its regulation of protected speech in
places open to the public, see supra pp. 14 n.9, 23–24.
PROJECT VERITAS V. SCHMIDT 25
1
We first consider the nature of Oregon’s interest here. At
the outset, Oregon does not assert it has a compelling
interest, but argues only that it has a significant
governmental interest in protecting individuals’
conversational privacy. In analyzing this interest, we are
bound by Wasden’s conclusion that “[t]he act of recording is
itself an inherently expressive activity” that merits First
Amendment protection. 878 F.3d at 1203. Therefore,
prohibiting a speaker’s creation of unannounced recordings
in public places to protect the privacy of people engaged in
conversation in those places is the equivalent of prohibiting
protesters’ or buskers’ speech in public places for the same
purpose. See Berger, 569 F.3d at 1054. Thus, we must
analyze Oregon’s interest in conversational privacy as
protecting people’s conversational privacy from the speech
of other individuals, even in places open to the public.
In general, the government does not have a compelling
interest in protecting individual privacy against unwanted
communications (including the “speech” comprised of
recording others) in areas open to the public unless the
audience’s “substantial privacy interests are being invaded
in an essentially intolerable manner.” Cohen v. California,
403 U.S. 15, 21 (1971); see also Hill v. Colorado, 530 U.S.
703, 717 (2000) (recognizing that the government’s interest
in protecting privacy “varies widely in different settings”).
Courts have recognized such a compelling interest only
when patients seeking medical care are bombarded by “the
cacophony of political protests” and individuals at their
homes are confronted with unwanted speech. Hill, 530 U.S.
at 716. The government’s interest in protecting the public’s
privacy from unwanted speech (including recordings of
people’s conversations) “is far less important” for
26 PROJECT VERITAS V. SCHMIDT
individuals engaging in recreational, social, or commercial
activities in places open to the public, such as “strolling
through Central Park,” id., or “waiting in line or having
lunch outdoors in a public park,” Berger, 569 F.3d at 1054.
Indeed, we have held that the government does not even
have a “significant interest in protecting [individuals] from
unpopular speech” where those who constitute the intended
audience are commercial patrons of “a place of public
entertainment.” Kuba v. 1-A Agric. Ass’n, 387 F.3d 850, 861
n.10 (9th Cir. 2004). Applying this framework here, Oregon
does not have a compelling interest in protecting individuals’
conversational privacy from other individuals’ protected
speech in places open to the public, even if that protected
speech consists of creating audio or visual recordings of
other people.
2
Nor is Oregon’s rule narrowly tailored to be “the least
restrictive or least intrusive means of” achieving the
government’s interest in conversational privacy, as required
to pass strict scrutiny review. Ward v. Rock Against Racism,
491 U.S. 781, 798–99 & n.6 (1989). Under strict scrutiny, a
speech restriction must “target[] and eliminate[] no more
than the exact source of the ‘evil’ it seeks to remedy.”
Frisby, 487 U.S. at 485 (citation omitted). A law is not
narrowly tailored if it restricts “speech that do[es] not cause
the types of problems that motivated the [law].” Comite de
Journaleros de Redondo Beach v. City of Redondo Beach,
657 F.3d 936, 948 (9th Cir. 2011) (en banc). In addition, a
law is not narrowly tailored if it is over-inclusive because it
suppresses more speech than is necessary to further
Oregon’s goal of protecting people’s conversational privacy.
See Wasden, 878 F.3d at 1205.
PROJECT VERITAS V. SCHMIDT 27
Applying this test, we conclude that section 165.540
burdens more protected speech than is necessary to achieve
its stated interest. See id. The law regulates protected speech
to avoid impinging on people’s conversational privacy. But
in public places, speech does not intrude on privacy unless it
intrudes in “an essentially intolerable manner.” See Berger,
569 F.3d at 1056 (holding that a statute prohibiting “passive
and unthreatening acts” such as offering a handbill or
displaying a sign, even if the communications were
unwanted, was not narrowly tailored under intermediate
scrutiny). As the Supreme Court has explained, “it is
difficult, indeed, to justify a prohibition on all uninvited
approaches . . . regardless of how peaceful the contact may
be, without burdening more speech than necessary to prevent
intimidation.” Madsen v. Women’s Health Center, Inc., 512
U.S. 753, 774 (1994). Section 165.540(1)(c) does not
distinguish between “passive and unthreatening” acts and
intolerable intrusions. Under our case law, that does not
constitute narrow tailoring.
Moreover, where speech occurs in places open to the
public, the privacy interest of other individuals in those
public areas is implicated only if and where the speech is
unwanted. See Hill, 530 U.S. at 716; Berger, 569 F.3d at
1056. Yet section 165.540(1)(c) does not distinguish
between wanted and unwanted speech (including wanted or
unwanted recordings).13 For example, protesters
demonstrating in favor of their political views may have no
objection to unannounced recordings of conversations,
which would provide more publicity about their goals and
13
For its part, the dissent apparently assumes without explanation that
all unannounced recordings are unwanted speech and all announced
recordings are welcomed speech. Dissent at 53–61.
28 PROJECT VERITAS V. SCHMIDT
beliefs. While some people may desire privacy for a
conversation held in places open to the public, such instances
cannot justify Oregon’s wholesale restriction on protected
speech (i.e., recordings) in public areas. See Rock Against
Racism, 491 U.S. at 799 (stating that a speech restriction
“may not regulate expression in such a manner that a
substantial portion of the burden on speech does not serve to
advance its goals”).
The dissent argues that Berger and its progeny are
inapplicable to section 165.540(1)(c) because “state action
aimed at protecting people from unwanted commercial or
political speech” is “qualitatively different” than state action
protecting people “from speech-gathering activities like
Project Veritas’s . . . because they appropriate the speech of
others.” Dissent at 45. According to the dissent, the sort of
speech that includes the “appropriation of another person’s
speech” (i.e., recordings) is qualitatively more burdensome
than other types of speech that might intrude on a person’s
privacy. Dissent at 64.
This position is foreclosed by Wasden, which did not
accord any special attention to the privacy interests of people
whose speech might be recorded. Rather, Wasden held that
a state law prohibiting audio or video recordings of the
conduct of an agricultural production facility’s operations,
which necessarily would include conversations, directions,
and other forms of oral communications, “suppresse[d] more
speech than necessary to further Idaho’s stated goals of
protecting property and privacy.” 878 F.3d at 1205.
Wasden’s analysis of recordings under the same framework
applicable to other sorts of protected speech is consistent
with precedent: for example, under our case law, we analyze
expressive conduct that merits First Amendment protection
as symbolic speech in the same manner as we analyze oral
PROJECT VERITAS V. SCHMIDT 29
communications. See Swisher, 811 F.3d at 318 (“Content-
based prohibitions of speech and symbolic speech are
analyzed under the same framework.”).14
Finally, as in Wasden, the rule is not narrowly tailored
because “there are various other laws at [Oregon’s] disposal
that would allow it to achieve its stated interests while
burdening little or no speech.” 878 F.3d at 1205 (citation
and quotation marks omitted). Individuals whose
conversation is captured in public by unannounced
recordings “can vindicate their rights” through an invasion
of privacy tort. See, e.g., Humphers v. First Interstate Bank
of Oregon, 696 P.2d 527, 531–32 (Or. 1985) (en banc)
(noting that Oregon has recognized the common law privacy
torts of appropriation, offensive publication of private facts,
and intrusion upon exclusion); State v. Lien, 441 P.3d 185,
193 (Or. 2019) (“Tortious invasion of privacy is one of the
limited number of torts in Oregon in which a plaintiff may
be awarded damages consisting solely of mental suffering
caused by the violation.”); Anderson v. Fisher Broad. Cos.,
712 P.2d 803, 814 (Or. 1986) (explaining instances where a
television program airing photographs of an accident victim
could give rise to a tortious invasion of privacy claim);
14
The dissent’s reliance on Hurley v. Irish-American Gay, Lesbian &
Bisexual Group of Boston, 515 U.S. 557 (1995), for the argument that
speech involving the creation of a recording that captures people’s
speech “implicates the ‘principle of autonomy to control one’s own
speech’” is misplaced. Dissent at 57–58. Hurley held that the First
Amendment prohibits the state from forcing a speaker to incorporate a
message that the speaker does not want to convey. See id. at 559, 581.
To the extent Hurley has any bearing on this case, it supports our view
that a law raises serious constitutional issues if it prohibits a speaker from
conveying the message the speaker wants to convey—candid responses
to issues of controversy—by making unannounced recordings.
30 PROJECT VERITAS V. SCHMIDT
McLain v. Boise Cascade Corp., 533 P.2d 343, 345–46 (Or.
1975) (holding that unannounced recordings of the plaintiff
“engaged in various activities on his property outside his
home” were not actionable as invasion of privacy torts
because the recordings “were done in such an unobtrusive
manner that plaintiff was not aware that he was being
watched and filmed” and the plaintiff “could have been
observed by . . . [a] passerby”). Or if the recording is
fabricated, “the victims can turn to defamation actions for
recourse.” Wasden, 878 F.3d at 1205; see also Neumann v.
Liles, 369 P.3d 1117, 1120–21 (Or. 2016).15
3
We conclude that section 165.540(1)(c) regulates
protected speech (unannounced audiovisual recording), and
is content based because it distinguishes between particular
topics by restricting some subject matters (e.g., a state
executive officer’s official activities) and not others (e.g., a
police officer’s official activities). As a content-based
restriction, the rule fails strict scrutiny review because the
law is not narrowly tailored to achieving a compelling
governmental interest in protecting conversational privacy
with respect to “each activity within the proscription’s
scope,” Berger, 569 F.3d at 1053, and there are other ways
15
The dissent’s concern regarding “deepfakes” is overblown. Dissent at
56–57, 72 n.16. As we explained in Wasden, victims of such fabrications
can vindicate their rights through tort actions. See 878 F.3d at 1205.
Moreover, deepfakes are not a problem unique to unannounced
recordings. Such “deepfakes” can be created just as easily with
announced recordings. As the dissent states, all one needs is “audio and
video of the person to be modeled” to create a “deepfake.” Dissent at
56–57, 72 n.16.
PROJECT VERITAS V. SCHMIDT 31
for Oregon to achieve its interests, see Wasden, 878 F.3d at
1205.
IV
The dissent agrees with our holding that section
165.540(1)(c) and its exceptions constitute a content-based
speech restriction that fails strict scrutiny review. Dissent at
50, 63. This should end our analysis.
Instead, the dissent argues that section 165.540(1)(c)’s
general prohibition should be analyzed as a stand-alone
provision that, by itself, is a constitutional content-neutral
speech restriction. Dissent at 53–54. To reach that
conclusion, the dissent relies exclusively on its argument
that the court should offer Oregon a remedy of severability.
Dissent at 50–53. Oregon chose not to make this argument
to the district court or to our court. But we briefly address it
here. Cf. Comite de Jornaleros de Redondo Beach, 657 F.3d
at 951 n.10 (declining to sever a subsection of a challenged
statute “[b]ecause the City ha[d] [forfeited] any argument
regarding severability by failing to raise it in its briefs or at
oral argument”).16
A
“Severability is of course a matter of state law.” Leavitt
v. Jane L., 518 U.S. 137, 139 (1996). To determine whether
a state statute is severable, we are bound by state statutes and
state court opinions. See Sam Francis Found. v. Christies,
Inc., 784 F.3d 1320, 1325 (9th Cir. 2015) (en banc).
16
The dissent cites several Supreme Court cases decided before we
issued Comite de Jornaleros. Dissent at 51–52, 52 n.7. But we are
bound by our precedent unless it is irreconcilable with a subsequent
higher authority. See Miller, 335 F.3d at 893.
32 PROJECT VERITAS V. SCHMIDT
The Oregon Supreme Court addressed the “nature of
severability” in State v. Dilts, 103 P.3d 95, 99 (Or. 2004) (en
banc).17 According to the Oregon Supreme Court, the
relevant statute, “[section] 174.040[,] governs decisions
regarding severability.” Id. This statute provides that “it is
the legislative intent, in the enactment of any statute, that if
any part of the statute is held unconstitutional, the remaining
parts shall remain in force” unless an exception applies.18
The exceptions to this presumption (that the legislature
would prefer an unconstitutional part of a statute to be
severed and the rest to remain in force) include
circumstances where “parts of the statute are so
interconnected that it appears likely that the remaining parts
would not have been enacted without the unconstitutional
part, or . . . [if] the remaining parts are incomplete and cannot
be executed in accordance with legislative intent.” Outdoor
17
Dilts provided a generally applicable analysis of Oregon severability
law. Nothing in the opinion suggests that this analysis would be different
if a party proposed severing the unconstitutional portion of a civil statute,
rather than a criminal statute. But see Dissent at 65.
18
Section 174.040 of the Oregon Revised Statutes provides in full:
It shall be considered that it is the legislative intent, in the
enactment of any statute, that if any part of the statute is
held unconstitutional, the remaining parts shall remain in
force unless:
(1) The statute provides otherwise;
(2) The remaining parts are so essentially and
inseparably connected with and dependent upon
the unconstitutional part that it is apparent that the
remaining parts would not have been enacted
without the unconstitutional part; or
(3) The remaining parts, standing alone, are
incomplete and incapable of being executed in
accordance with the legislative intent.
PROJECT VERITAS V. SCHMIDT 33
Media Dimensions, Inc. v. Dep’t of Transp., 132 P.3d 5, 18
(Or. 2006).
Based on this statute, and Oregon Supreme Court cases,
severability analysis applies “when part of a statute is held
to be unconstitutional.” Dilts, 103 P.3d at 99. Under such
circumstances, a court must consider “whether that part of
the statute can be severed and the remaining parts of the
statute saved.” Id. Namely, under this framework, a court
must make two determinations. First, it must conclude that
part of the statute is unconstitutional. Second, it must
conclude that the rest of the statute can be “saved,” meaning
it would be deemed constitutional, if the unconstitutional
part were severed. “When a party contends the entire act is
unconstitutional,” then “severability is not germane until the
constitutional claim is . . . resolved.” Bernstein Bros. v.
Dep’t of Revenue, 661 P.2d 537, 539 (Or. 1983).
As a general rule, under Dilts and section 174.040, a
court’s threshold determination is whether a part of the
statute is unconstitutional. Indeed, Dilts rejected Oregon’s
severability argument in that case because no party alleged
that the specific provision the state proposed to sever was
unconstitutional. 103 P.3d at 99. Nevertheless, when a
statute raises First Amendment concerns because it is
content based, the Oregon Supreme Court has considered
whether to sever a portion of the statute that singles out a
topic or subject matter for differential treatment, even if that
portion is not itself unconstitutional. See Outdoor Media
Dimensions, Inc., 132 P.3d at 19.
In this context, Outdoor Media Dimensions considered a
state statute that “requir[ed] a permit for a sign whose
message does not relate to the premises on which the sign is
located while providing an exemption for a sign whose
34 PROJECT VERITAS V. SCHMIDT
message does relate to the premises on which the sign is
located.” Id. at 7. The court first held that by exempting on-
premises signs from the permit requirement, the statute was,
“on its face, an impermissible restriction on the content of
speech” in violation of the Oregon constitution. Id. at 18.
Turning to the issue of severability, the court explained that
to remedy the constitutional violation it could either
invalidate the permit requirement or sever the exception for
on-premises signs. Id. at 19. The court determined that
“faced with that choice, the legislature would not have been
willing to extend the [statute’s] permit and fee requirements
to . . . on-premises signs,” and, therefore, the court held that
“the appropriate remedy” was to invalidate the permit
requirement. Id.
B
1
Under Outdoor Media, we may consider whether
severing the exceptions to section 165.540(1)(c) would
“save” that section’s general prohibition, even though the
exceptions are not themselves unconstitutional. Assuming
that section 165.540(1)(c), considered by itself, is content
neutral, it can be “saved” as constitutional if it qualifies as a
valid time, place, or manner restriction. Such a restriction
must (1) be content neutral, (2) survive intermediate scrutiny
review, and (3) “leave open ample alternative channels for
communication of the information.” Hoye v. City of
Oakland, 653 F.3d 835, 844 (9th Cir. 2011) (citing Rock
Against Racism, 491 U.S. at 791); see also Regan v. Time,
Inc., 468 U.S. 641, 648 (1984). Assuming that section
165.540(1)(c) would be content neutral if it were a stand-
alone provision and would survive intermediate scrutiny
review, we conclude it does not satisfy the third requirement.
PROJECT VERITAS V. SCHMIDT 35
“[A] regulation that forecloses an entire medium of
public expression across the landscape of a particular
community or setting fails to leave open ample alternatives.”
United Bhd. of Carpenters & Joiners of Am. Loc. 586 v.
NLRB, 540 F.3d 957, 969 (9th Cir. 2008). Regulations may
not hamper a speaker’s preferred mode of communication to
such an extent that they compromise or stifle the speaker’s
message. See McCullen v. Coakley, 573 U.S. 464, 487–90
(2014). Alternatives that are “less effective media for
communicating the [speaker’s] message . . . . are far from
satisfactory.” Linmark Assocs., Inc. v. Township of
Willingboro, 431 U.S. 85, 93 (1977). “[F]ree speech
protections extend to the right to choose a particular means
or avenue of speech in lieu of other avenues.” United Bhd.,
540 F.3d at 969 (cleaned up) (citation and quotation marks
omitted). Thus, while the “[g]overnment may regulate the
manner of speech in a content-neutral way,” the government
“may not infringe on an individual’s right to select the means
of speech.” Foti, 146 F.3d at 641–42.
For example, in City of Ladue v. Gilleo, the Supreme
Court held that an ordinance that prohibited displaying signs
in front of one’s residence did not leave open ample
alternative channels of communication. 512 U.S. 43, 56
(1994). In reaching that conclusion, the Supreme Court
rejected the city’s argument that the law left open ample
alternative channels of communication because “residents
remain free to convey their desired messages by other
means, such as hand-held signs, letters, handbills, flyers,
telephone calls, newspaper advertisements, bumper stickers,
speeches, and neighborhood or community meetings.” Id.(citation and quotation marks omitted). In doing so, the
Supreme Court explained that “[d]isplaying a sign from
one’s own residence often carries a message quite distinct
36 PROJECT VERITAS V. SCHMIDT
form placing the same sign someplace else, or conveying the
same text or picture by other means.” Id. Indeed, it is
“[p]recisely because of their location [that] such signs
provide information about the identity of the speaker.” Id.(quotation marks omitted). To illustrate, the Supreme Court
noted that “[a] sign advocating ‘Peace in the Gulf’ in the
front lawn of a retired general or decorated war veteran may
provoke a different reaction than the same sign in a 10-year-
old child’s bedroom window or the same message on a
bumper sticker of a passing automobile.” Id. Likewise,
“[a]n espousal of socialism may carry different implications
when displayed on the grounds of a stately mansion than
when pasted on a factory wall or an ambulatory sandwich
board.” Id. at 56–57. Moreover, the intention behind
placing a sign at one’s residence may be “to reach neighbors,
an audience that could not be reached nearly as well by other
means.” Id. at 57 (emphasis omitted). In some instances,
barring a means of speech effectively eliminates a message.
For speakers “of modest means or limited mobility, a yard
or window sign may have no practical substitute.” Id. And
for others, “the added costs in money or time of taking out a
newspaper advertisement, handing out leaflets on the street,
or standing in front of one’s house with a handheld sign may
make the difference between participating and not
participating in some public debate.” Id.In light of this understanding of what case law requires
for a speech restriction to leave open ample alternative
channels for communication, it is clear that section
165.540(1)(c) does not meet the mark. It functions as “an
absolute prohibition on a particular type of expression”—the
creation of unannounced audiovisual recordings. United
States v. Grace, 461 U.S. 171, 177 (1983). Though section
165.540(1)(c) allows individuals to record conversations
PROJECT VERITAS V. SCHMIDT 37
where participants are “specifically informed that their
conversation is being obtained,” such notification would
effectively destroy the intended content of the recording.
The subject matter of unannounced recordings is the
subjects’ candid responses to issues of controversy. Because
the protected speech is the recording of subjects’ unfiltered
responses, see Wasden, 878 F.3d at 1204, a rule that requires
the person creating the recording to provide notice
extinguishes that speech. In other words, creating
announced recordings is not an adequate alternative channel
of speech for creating unannounced recordings.19
Nor does after-the-fact reporting of an undercover
interview or encounter provide an adequate alternative
method of communication. Audiovisual recording is a
unique medium of communication. It captures in real time
both the sounds and sights of an event, making it more
trustworthy and persuasive—and thus having vastly greater
impact—than post-hoc written or oral accounts. See Fields
v. City of Philadelphia, 862 F.3d 353, 359 (3d Cir. 2017)
(noting that audiovisual recordings “corroborate[] or lay[]
aside subjective impressions for objective facts”); Am. C.L.
Union of Illinois v. Alvarez, 679 F.3d 583, 595, 607 (7th Cir.
2012) (stating that the “self-authenticating character” of
audiovisual recordings “makes it highly unlikely that other
methods could be considered reasonably adequate
substitutes”). Indeed, the Supreme Court recognized the
importance of audiovisual recording as corroborating or
disproving testimony in Scott v. Harris. Even on summary
19
In fact, the dissent expressly acknowledges these attributes, which are
unique to unannounced recordings. Dissent at 55. But by recognizing
that unannounced recordings are unique, the dissent has necessarily
conceded that other forms of media are inadequate substitutes.
38 PROJECT VERITAS V. SCHMIDT
judgment when “courts are required to view the facts and
draw reasonable inferences ‘in the light most favorable to the
party opposing the [summary judgment] motion,’” the court
must rely on “the record of a videotape capturing the events
in question,” when it “clearly contradicts the version of the
story told by” the nonmoving party. 550 U.S. 372, 378
(2007) (citation omitted). Audiovisual recordings are also
unique because they can readily be disseminated to a wider
audience when incorporated into news programming. See
Fields, 862 F.3d at 359 (“Recordings also facilitate
discussion because of the ease in which they can be widely
distributed via different forms of media.”); Am. C.L. Union
of Illinois, 679 F.3d at 607 (noting that audiovisual
recordings are “powerful methods of . . . disseminating
news and information”). Accordingly, section 165.540(1)(c)
does not leave open alternative channels to real-time,
unannounced audiovisual recordings. And we therefore
conclude that section 165.540(1)(c) (if read as a stand-alone
provision, without exceptions) is not a valid time, place, or
manner restriction.
In opposing this analysis, and arguing that section
165.540(1)(c) leaves open ample alternative channels of
communication, the dissent reframes the medium of public
expression sought by Project Veritas at a high level of
generality. According to the dissent, the relevant medium of
communication is not the unannounced recordings that
capture candid responses, but rather “investigative
journalism” generally. Dissent at 61–63. At this high level
of generality, the dissent insists section 165.540 does not
prevent Project Veritas from engaging in investigative
journalism of some sort. And it claims that we previously
held that restricting unannounced recording does not
foreclose the medium of investigative journalism. See
PROJECT VERITAS V. SCHMIDT 39
Dietemann v. Time, Inc., 449 F.2d 245 (9th Cir. 1971).
Dissent at 55–56, 62 & n.11, 65.
We disagree with this analysis. First, the dissent again
fails to recognize the implications of Wasden. Under
Wasden, the creation of an unannounced recording of a
subject’s unguarded conduct (which would include any
statements made in the course of such conduct) is itself a
form of protected speech and constitutes “a significant
medium” of public expression. 878 F.3d at 1203 (citation
and quotation marks omitted). As explained above, section
165.540(1)(c) does not leave ample alternative channels for
Project Veritas’s mode of speech. Thus, the dissent’s
argument that section 165.540(1)(c) does not foreclose
investigative journalism as a journalistic approach misses
the mark. At some level of generality, “art” can be made
without a paint brush—but neither sculpture nor architecture
is a substitute for painting.
Moreover, the dissent’s reliance on Dietemann is
misplaced. Dissent at 55–56, 62 & n.11, 65. In Dietemann,
two journalists used a ruse to gain entry to the plaintiff’s
home and then surreptitiously photographed and recorded
him without consent. 449 F.2d at 245–46. We held that the
plaintiff could state a claim for invasion of privacy under
California law because the conduct occurred inside the
plaintiff’s home, id. at 248, and because the First
Amendment did not “accord newsmen immunity from torts
or crimes committed during the course of newsgathering,”
id. at 249. But Dietemann has no bearing on the question
whether a rule prohibiting unannounced recordings in public
places fails to leave open ample alternative channels of
communication.
40 PROJECT VERITAS V. SCHMIDT
For this reason, the dissent’s argument that a parade of
horribles will result from our analysis—such as the
invalidation of “eavesdropping statutes”—is not well-taken.
Dissent at 73. As explained, see supra Section III.A., the
threshold question is whether the challenged law restricts
First Amendment protected speech. Under Wasden, the
creation of an unannounced recording is speech protected by
the First Amendment. But we are not aware of any cases
holding that eavesdropping (without more) is protected
speech. Therefore, the First Amendment would not
constitute grounds to invalidate a statute prohibiting that
conduct. Moreover, we analyzed section 165.540(1)(c) as a
prohibition of First Amendment protected speech in public
places. See supra Section III.C. Our analysis of the state’s
asserted governmental interest and whether its restriction on
speech is narrowly tailored would necessarily be different in
the context of eavesdropping, where an individual’s
heightened privacy interests in his own home are at stake.
Nothing we have said today impugns the well-established
rule that the First Amendment does not “accord [a speaker]
immunity from torts or crimes committed” in service of his
speech. Dietemann, 449 F.2d at 249.20
2
Because we conclude that section 165.540(1)(c) is not a
valid time, place, or manner restriction, it cannot be “saved”
by striking the two exceptions at issue here. Therefore,
20
The dissent argues that our conclusion that section 165.540(1)(c) is not
a valid time, place, or manner restriction, means that the Oregon
legislature is “in a catch-22.” Dissent at 69. But a judicial determination
that a statute is unconstitutional does not put the legislature in a catch-22
situation; rather, it merely tells the legislature that its enactment has
impermissibly infringed on the First Amendment rights of its citizens.
PROJECT VERITAS V. SCHMIDT 41
“severability is not germane.” Bernstein Bros., 661 P.2d at
539. Further, under Outdoor Media Dimensions, we also
conclude that the Oregon legislature would not intend the
exceptions to be severed, because when Oregon courts
analyze severability, they “assum[e] that the legislature
prefers to avoid enacting a bill that raises serious questions
of constitutionality.” State v. Borowski, 220 P.3d 100, 109
(Or. Ct. App. 2009).
If the exceptions were removed, section 165.540(1)(c)
would raise serious constitutional issues. This section would
prohibit the unannounced recording of police officers
performing their official duties or a felony endangering
human life. But we have consistently and repeatedly held
that “[t]he First Amendment protects the right to photograph
and [to] record matters of public interest,” Askins, 899 F.3d
at 1044, which includes the right to “observ[e]
government[al] operation[s],” Reed v. Lieurance, 863 F.3d
1196, 1211 (9th Cir. 2017), and the commission of a crime,
see Obsidian Fin. Grp., LLC v. Cox, 740 F.3d 1284, 1291–
92 (9th Cir. 2014). Requiring a citizen to inform all parties
involved to capture governmental officials’ performance of
official duties in public places, for example, would
substantially impede this speech right by foreclosing a major
avenue for citizens to “[g]ather[] information about
government officials in a[n unaltered] form that can readily
be disseminated to others,” despite the fact that this type of
speech “serves a cardinal First Amendment interest in
protecting and promoting ‘the free discussion of
governmental affairs.’” Glik v. Cunniffe, 655 F.3d 78, 82
(1st Cir. 2011) (citing Mills v. Alabama, 384 U.S. 214, 218
(1966)). Further, an announced recording of a felony in
progress would not only tend to reduce the opportunity to
capture such evidence, but also tend to imperil the person
42 PROJECT VERITAS V. SCHMIDT
recording. Given the impetus for this exception was to
enable police officers to make unannounced recordings of
felony drug transactions and felonies endangering human
life without first obtaining a court order, see supra pp. 8–9,
the legislature would not choose to endanger police by
eliminating this exception to the general rule.
The dissent suggests that removing the exceptions from
the general prohibition in section 165.540(1)(c) would not
raise constitutional issues because a court would likely deem
section 165.540(1)(c) unconstitutional as applied to an
individual who filmed police or other matters of public
interest in public places. Dissent at 68–69. But such a
conclusion merely acknowledges that the general
prohibition itself raises serious constitutional issues.
Therefore, severing the exceptions that make the general
prohibition content based, and extending the general
prohibition to these protected First Amendment activities,
would create significant constitutional issues rather than
cure them. Under Outdoor Media, we must presume that the
Oregon legislature would not retain such a law.21
21
The dissent argues that the legislature would want to retain section
165.540(1)(c) as a stand-alone provision, even if the exception in section
165.540(5)(b) for recording police officers were severed, because the
general prohibition in section 165.540(1)(c) “was freestanding for fifty-
six years before the legislature adopted the exception that allows the
recording of law enforcement officers performing official duties in
public.” Dissent at 51; see also Dissent at 67–68. This evinces a
misunderstanding of the relevant legislative history. The legislature
adopted section 165.540(1)(c) long before Fordyce made clear that such
a general prohibition on filming matters of public concern raises serious
constitutional questions. See 55 F.3d at 439. Following Fordyce and
subsequent opinions reiterating this rule, the legislature added the
exception in section 165.540(5)(b)—likely to eliminate this
constitutional concern. (Unfortunately, the addition of this exception
PROJECT VERITAS V. SCHMIDT 43
***
Reading section 165.540(1)(c) as a whole, we conclude
that it is a content-based speech restriction that cannot
survive strict scrutiny because Oregon has not asserted a
compelling government interest and because the statute is
not narrowly tailored. The statute is also not a valid time,
place, or manner restriction because it does not leave open
ample alternative channels for communication. Applying
Oregon law, we may not sever the exceptions because
severing them would not render section 165.540(1)(c)
constitutional. Accordingly, we conclude that the statute is
facially unconstitutional.
REVERSED and REMANDED.
CHRISTEN, Circuit Judge, dissenting:
“The right to speak and publish does not carry with it the
unrestrained right to gather information.” Zemel v. Rusk,
381 U.S. 1, 17 (1965).
When it adopted Oregon Revised Statutes
section 165.540(1)(c), the Oregon legislature required that
notice must be given before in-person oral conversations
may be recorded. With this statute, the legislature ensured
rendered section 165.540 a content-based speech restriction, which
created a different First Amendment issue.) Given that the Oregon
legislature already evinced its intent to avoid the constitutional questions
raised when section 165.540(1)(c) was a standalone provision, we must
conclude that the legislature would not sever the exception in section
165.540(5)(b), which would merely bring back to life the same
constitutional issue that the Oregon legislature faced prior to enacting
this exception.
44 PROJECT VERITAS V. SCHMIDT
that Oregonians would be free to engage in the “uninhibited
exchange of ideas and information,” 1 without fear that their
words could be broadcast beyond their intended audience,
appear on the evening news, or worse, be manipulated and
shared across the internet devoid of relevant context.
Project Veritas engages in undercover investigative
journalism, and it finds Oregon’s protection against the
secret recording of oral conversations a hindrance to its
operations. Project Veritas seeks a ruling declaring section
165.540(1)(c) unconstitutional, arguing there is no
distinction between hearing a conversation and secretly
recording it. Because the majority does not dispute that the
State has a significant interest in protecting the privacy of
Oregonians who engage in conversations without notice that
their comments are being recorded, our court’s analysis
should be straightforward. First, principles of federalism
require that we begin from a premise of reluctance to strike
down a state statute. Next, following Supreme Court
precedent, we should sever the two statutory exceptions that
Project Veritas challenges, apply intermediate scrutiny to the
content-neutral remainder, recognize that the statute is well-
tailored to meet Oregon’s significant interest, and uphold
section 165.540(1)(c) as a reasonable time, place, or manner
restriction.
The majority takes a very different path. It begins by
straining to avoid the conclusion that the two exceptions to
section 540(1)(c)’s notice requirement that Project Veritas
challenges are severable. From there, the majority concludes
that severance is inappropriate by implausibly speculating
that the Oregon legislature—which the majority faults for
1
Bartnicki v. Vopper, 532 U.S. 514, 532 (2001) (citation omitted).
PROJECT VERITAS V. SCHMIDT 45
overzealously protecting privacy—would have preferred to
jettison all of section 540(1)(c) rather than striking the two
exceptions.
My colleagues do not contest that Oregon has a
significant interest in protecting people from unannounced
recordings of in-person conversations, but they rewrite the
State’s articulated purpose. The purpose Oregon advances
is its significant interest in protecting participants from
having their oral conversations recorded without their
knowledge. The majority recasts the State’s interest as one
in “protecting people’s conversational privacy from the
speech of other individuals.” Slip Op. at 25. (emphasis
added). That reframing of the legislature’s purpose serves
as the springboard for the majority’s reliance on an
inapplicable line of Supreme Court authority that pertains to
state action aimed at protecting people from unwanted
commercial or political speech; not protection from speech-
gathering activities like Project Veritas’s, which are
qualitatively different because they appropriate the speech
of others.
The majority glosses over this important distinction, and
in the end, it declares that all of section 165.540(1)(c) is
unconstitutional by concluding that the State’s ban on
unannounced recordings leaves no adequate alternative
channel of communication. This final rationale is contrary
to the reasoning of our own court, which has explained that
“hidden mechanical contrivances are [not] ‘indispensable
tools’ of newsgathering. Investigative reporting is an
ancient art; its successful practice long antecedes the
invention of miniature cameras and electronic devices.”
Dietemann v. Time, Inc., 449 F.2d 245, 249 (9th Cir. 1971).
Because modern technology now allows voice recordings to
be manipulated and disseminated worldwide with a few
46 PROJECT VERITAS V. SCHMIDT
keystrokes and clicks, the protection afforded by section
165.540(1)(c) is more important than ever.
For all these reasons, I respectfully dissent.
I.
In 1955, the Oregon legislature enacted what is now
section 165.540 of the Oregon Revised Statutes, a
wiretapping law that requires the consent of one party before
a telecommunication or a radio communication may be
recorded in Oregon. See State v. Lissy, 747 P.2d 345, 350
(1987); Or. Rev. Stat. § 165.540(1)(a) (1955). 2 The
legislature amended section 165.540 in 1959 to require that
anyone wishing to record an in-person conversation must
first specifically inform all participants. 3 Lissy, 747 P.2d at350 & n.4. “[T]he primary concern underlying [§]
165.540(1)(c) was the protection of participants in
conversations from being recorded without their
knowledge.” State v. Neff, 265 P.3d 62, 66 (Or. Ct. App.
2011). The 1959 amendment was codified as
2
The original wiretapping statute provided, in relevant part, that a person
may not “[o]btain or attempt to obtain the whole or any part of a
telecommunication or a radio communication to which such person is
not a participant, by means of any device, contrivance, machine or
apparatus, whether electrical, mechanical, manual or otherwise, unless
consent is given by at least one participant.” Or. Rev. Stat.
§ 165.540(1)(a) (1955).
3
The section was later amended to include face-to-face conversations
conducted via video conference. Compare Or. Rev. Stat. § 165.540(6)(a)
(2022), with Or. Rev. Stat. § 165.540(6)(a) (2019). My use of the term
“in-person conversation” encompasses the audio portion of
conversations conducted by video conference.
PROJECT VERITAS V. SCHMIDT 47
section 165.540(1)(c) of the Oregon Revised Statutes, and it
is the focus of Project Veritas’s appeal. 4
Two exceptions to Oregon’s ban on recording in-person
oral conversations are at issue. The first, adopted by the
legislature in 1989, allows the unannounced recording of “a
conversation during a felony that endangers human life.”
Or. Rev. Stat. § 165.540(5)(a) (1989). The second
exception, adopted in 2015, permits the unannounced
recording of “a conversation in which a law enforcement
officer is a participant,” provided that certain conditions are
met. Or. Rev. Stat. § 165.540(5)(b) (2015). 5 As to this
exception, the majority recognizes that our own court has
squarely held that the right to record law enforcement
officers performing official duties in public is protected by
the First Amendment. See Fordyce v. City of Seattle, 55 F.3d
436, 439 (9th Cir. 1995); Askins v. U.S. Dep’t of Homeland
Sec., 899 F.3d 1035, 1044 (9th Cir. 2018). The majority
takes the position that federal law also protects recording
during a felony that endangers human life. Assuming the
exceptions to section 540(1)(c) are indeed co-extensive with
4
Section 165.540(1)(c) provides that no person may “[o]btain or attempt
to obtain the whole or any part of a conversation by means of any device,
contrivance, machine or apparatus, whether electrical, mechanical,
manual or otherwise, if all participants in the conversation are not
specifically informed that their conversation is being obtained.” Or. Rev.
Stat. § 165.540(1)(c) (1961). The term “conversation,” is defined to
include only “oral communications.” Or. Rev. Stat. § 165.535(1).
5
Specifically, the officer must be “performing official duties,” the
recording must be made “openly and in plain view,” the conversation
must be “audible to the person by normal unaided hearing,” and the
person recording must be “in a place where the person lawfully may be.”
Or. Rev. Stat. § 165.540(5)(b).
48 PROJECT VERITAS V. SCHMIDT
conduct protected by the federal constitution, the exceptions
do not change the speech that is permitted in Oregon.
II.
Project Veritas challenges section 165.540(1)(c)’s
requirement that a participant must give notice before
recording an in-person conversation in Oregon. This
provision applies to unannounced recordings of
“conversations,” which, as explained, are defined to include
only “oral communications.” 6 Or. Rev. Stat. §§ 165.535(1),
165.540(1)(c) (emphasis added). Project Veritas proposes to
investigate the Oregon Public Records Advocate and Public
Records Advisory Council by conducting surreptitious or
unannounced recordings of conversations in areas open to
the public, including cafes, parks, and sidewalks. Project
Veritas also proposes to investigate violent protests in
Portland by: (1) secretly recording conversations between
police and protestors; (2) secretly recording conversations
6
The majority asserts that section 165.540(1)(c) applies to both audio
and video recordings. It supports this statement with the observation that
the statute “bars individuals from obtaining a conversation ‘by means of
any device,’” Slip Op. at 6 & n.3 (quoting State v. Copeland, 522 P.3d
909, 911–12 (Or. Ct. App. 2022)), and the observation that the term
“conversation” is defined to include both in-person oral communications
and those conducted via video conference. Neither observation changes
that the statute expressly requires notification only before recording an
oral communication. A video recording that does not include an
accompanying audio recording of an oral communication is not subject
to the statute. The majority resists the result of the clear statutory
language by arguing Copeland did not differentiate between a video of a
“heated discussion” and a video of a shooting. Slip Op. at 6 n.3. But
that case concerned a video that captured both a conversation and a
shooting, and nothing in that opinion implies that section 165.540(1)(c)
would apply to a video that did not capture an oral communication. See
Copeland, 522 P.3d at 912–13.
PROJECT VERITAS V. SCHMIDT 49
between its journalists and police; (3) secretly recording
conversations between its journalists and protestors; and (4)
openly recording conversations with protestors without
providing notice of the recording. The majority repeatedly
suggests that Project Veritas seeks to record only in public
places, but Project Veritas avers only that most of its
recording will occur in public places. It does not identify the
other venues that it has in mind.
Project Veritas acknowledges the validity of Oregon’s
prohibition on “eavesdropping,” and explicitly disavows any
intention of eavesdropping. As Oregon defines that term,
this means Project Veritas will not intercept wire or oral
communications to which Project Veritas is not a party,
without the consent of the participants. Or. Rev. Stat.
§ 165.543(1). Instead, Project Veritas plans to record
conversations in which its reporters participate by using
concealed recording devices and not giving notice that the
conversations are being recorded. Project Veritas argues
that such recording is protected speech under the First
Amendment and that the other participants in these
conversations have only a “limited,” “tenuous,” and
“minimal” privacy interest in not having their speech
recorded.
A.
In defining the scope of First Amendment protection, our
precedent draws no distinction between the process of
creating speech and speech itself. Anderson v. City of
Hermosa Beach, 621 F.3d 1051, 1061–62 (9th Cir. 2010).
We have explained that “[b]ecause the recording process is
itself expressive and is ‘inextricably intertwined’ with the
resulting recording, the creation of audiovisual recordings is
speech entitled to First Amendment protection as purely
50 PROJECT VERITAS V. SCHMIDT
expressive activity.” Animal Legal Def. Fund v. Wasden,
878 F.3d 1184, 1204 (9th Cir. 2018) (quoting Anderson, 621
F.3d at 1062) (reasoning that the act of creating a recording
is itself expressive, much like writing a book or painting a
picture). But unlike writing a book or painting a picture,
recording a conversation involves the appropriation of
others’ speech. To be clear, I agree that Project Veritas’s act
of creating a recording is protected speech, but it is important
to recognize that the type of speech Project Veritas plans to
engage in—unannounced in-person recordings of oral
conversations—infringes upon other speakers’ competing
interest in conversational privacy. That competing interest
plays a critical role when we assess whether the State’s time,
place, or manner restriction is reasonable and sufficiently
tailored to the State’s significant interest.
Project Veritas argues that the dangerous-felony
exception and the law-enforcement exception are both
content based, rendering all of section 165.540(1)(c) content
based. For purposes of this analysis, I assume this is correct.
Content-based restrictions on speech are subject to strict
scrutiny, Wasden, 878 F.3d at 1204, and Oregon does not
argue that section 165.540(1)(c) can satisfy that heightened
standard. But even assuming that section 165.540(1)(c) fails
strict scrutiny if the two challenged exceptions are
considered, the question we should ask next is whether the
two statutory exceptions are severable.
B.
The Supreme Court recently reiterated in Barr v.
American Ass’n of Political Consultants, Inc. [AAPC], 140
S. Ct. 2335 (2020), that when confronted with an exception
that renders a restriction on speech impermissibly content
based, we apply ordinary severability principles, starting
PROJECT VERITAS V. SCHMIDT 51
with a “strong presumption of severability” that dates back
to the Marshall Court. Id. at 2350; see Free Enter. Fund v.
Pub. Co. Acct. Oversight Bd., 561 U.S. 477, 508 (2010).
“The Court’s presumption of severability . . . allows courts
to avoid judicial policymaking or de facto judicial legislation
in determining just how much of the remainder of a statute
should be invalidated.” AAPC, 140 S. Ct. at 2351. The
presumption of severability applies with particular force
where, as here, the legislature “added an unconstitutional
amendment to a prior law. In those cases, the Court has
treated the original, pre-amendment statute as the ‘valid
expression of the legislative intent.’” Id. at 2353 (quoting
Frost v. Corp. Comm’n of Okla., 278 U.S. 515, 526–27
(1929)). We need not guess at whether the Oregon
legislature intended its previously enacted protection for in-
person conversations to exist independently, because
section 165.540(1)(c) was a freestanding provision for thirty
years before the legislature adopted the dangerous-felony
exception, and it was freestanding for fifty-six years before
the legislature adopted the exception that allows the
recording of law enforcement officers performing official
duties in public. As the majority points out, the Oregon
legislature’s statutory scheme is among the nation’s
strongest protections for conversational privacy. Slip Op. at
6 n.1. What the majority overlooks is that this makes it
particularly implausible that the legislature intended
Oregon’s entire conversational privacy statute to be struck
down rather than have the two challenged exceptions
severed. The majority suggests that it addresses severability
only because I rely on it, Slip Op. at 31, but the Supreme
Court has made clear that striking down a statute before
considering severability is not an option.
52 PROJECT VERITAS V. SCHMIDT
We have an obligation to consider severability regardless
of whether litigants raise it. 7 Principles of federalism make
it particularly important that we apply a surgical approach in
this case and sever any constitutionally suspect provisions,
because we are a federal court treading on a state statute.
The majority acknowledges that the “[s]everability [of a
state statutory provision] is of course a matter of state law,”
Leavitt v. Jane L., 518 U.S. 137, 139 (1996) (per curiam),
and both Oregon statutory law and Oregon Supreme Court
precedent require us to apply a presumption in favor of
severability, see Or. Rev. Stat. § 174.040; Outdoor Media
Dimensions, Inc. v. Dep’t of Transp., 132 P.3d 5, 18 (Or.
2006). Specifically, Oregon Revised Statutes
section 174.040 provides:
It shall be considered that it is the legislative
intent, in the enactment of any statute, that if
any part of the statute is held
unconstitutional, the remaining parts shall
remain in force unless:
(1) The statute provides otherwise;
7
New York v. United States, 505 U.S. 144, 186 (1992) (“Having
determined that the take title provision exceeds the powers of Congress,
we must consider whether it is severable from the rest of the Act.”
(emphasis added)); accord Brockett v. Spokane Arcades, Inc., 472 U.S.
491, 507 (1985) (rejecting appellees’ argument that appellants had
forfeited the severability issue before our circuit and concluding that our
circuit should have considered severability before striking down a state
statute); see Brief for All Appellees at 44, Brockett, 472 U.S. 491 (Nos.
84-28, 84-143), 1984 WL 565782, at *44; see also Nat’l Ass’n for Gun
Rights, Inc. v. Mangan, 933 F.3d 1102, 1122 (9th Cir. 2019) (addressing
severability sua sponte even though neither litigant addressed it on
appeal or in the district court).
PROJECT VERITAS V. SCHMIDT 53
(2) The remaining parts are so
essentially and inseparably
connected with and dependent
upon the unconstitutional part
that it is apparent that the
remaining parts would not have
been enacted without the
unconstitutional part; or
(3) The remaining parts, standing
alone, are incomplete and
incapable of being executed in
accordance with the legislative
intent.
In Outdoor Media Dimensions, the Oregon Supreme
Court explained that “[o]rdinarily, when one part of a statute
is found unconstitutional, this court’s practice (and the
legislature’s stated preference) is to sever the offending part
and save the remainder of the statute, unless the legislature
has directed otherwise, unless the parts of the statute are so
interconnected that it appears likely that the remaining parts
would not have been enacted without the unconstitutional
part, or unless the remaining parts are incomplete and cannot
be executed in accordance with legislative intent.” 132 P.3d
at 18. None of Oregon’s exceptions to the presumption of
severability apply here, so we should sever the two
exceptions Project Veritas challenges and evaluate the
constitutionality of the remaining notice requirement.
C.
No one disputes that section 165.540(1)(c) is content
neutral if the two challenged exceptions are severed, so
intermediate scrutiny applies. See Turner Broad. Sys., Inc.
54 PROJECT VERITAS V. SCHMIDT
v. FCC, 512 U.S. 622, 642 (1994). To survive intermediate
scrutiny, a time, place, or manner restriction on speech must
be “narrowly tailored to serve a significant governmental
interest, and . . . leave open ample alternative channels for
communication of the information.” Ward v. Rock Against
Racism, 491 U.S. 781, 791 (1989) (quoting Clark v. Cmty.
for Creative Non-Violence, 468 U.S. 288, 293 (1984)). The
narrow-tailoring requirement does not mean that the
government’s restriction on speech must be the “least
restrictive or least intrusive means” of serving the state’s
interest, but the government cannot “regulate expression in
such a manner that a substantial portion of the burden on
speech does not serve to advance its goals.” Id. at 798–99.
1.
Oregon’s attorney general argues that section
165.540(1)(c)’s restriction on recording in-person
conversations is justified by Oregon’s significant interest in
ensuring that Oregonians know whether their conversations
are being recorded. This is unquestionably a significant state
interest. The Supreme Court has recognized that “[p]rivacy
of communication is an important interest” and that
restrictions protecting this interest can “encourag[e] the
uninhibited exchange of ideas and information among
private parties.” Bartnicki v. Vopper, 532 U.S. 514, 532
(2001) (citation omitted). The Court has also recognized that
“the fear of public disclosure of private conversations might
well have a chilling effect on private speech.” Id. at 533;
accord Am. C.L. Union of Ill. v. Alvarez, 679 F.3d 583, 605
(7th Cir. 2012) (“[Conversational privacy] is easily an
important governmental interest.”).
Project Veritas does not dispute this point. Indeed, it
acknowledges that “[p]rivacy is an important governmental
PROJECT VERITAS V. SCHMIDT 55
interest that eavesdropping and wiretapping prohibitions are
narrowly tailored to protect.” Nevertheless, Project Veritas
argues that if one of its undercover reporters consents to
having an in-person conversation recorded, the other party
to the conversation has only a “limited,” “tenuous,” and
“minimal” privacy interest in not being recorded. To reach
this implausible conclusion, Project Veritas begins from the
assertion that “[a]n audio recording by a party is little more
than a more accurate record of what one party is already, in
the overwhelming majority of circumstances, entitled to
share in a free society.” In other words, in Project Veritas’s
view, having one’s oral communication secretly recorded
imposes no greater burden on privacy than merely having the
same comments heard—never mind that recorded comments
can be forwarded to vast audiences, posted on the internet in
perpetuity, selectively edited, presented devoid of context,
or manipulated using modern technology.
Project Veritas’s premise is emphatically wrong. In
Dietemann, we reasoned:
One who invites another to his home or office
takes a risk that the visitor may not be what
he seems, and that the visitor may repeat all
he hears and observes when he leaves. But
he does not and should not be required to take
the risk that what is heard and seen will be
transmitted by photograph or recording, or in
our modern world, in full living color and hi-
fi to the public at large or to any segment of
it that the visitor may select. A different rule
could have a most pernicious effect upon the
dignity of man and it would surely lead to
56 PROJECT VERITAS V. SCHMIDT
guarded conversations and conduct where
candor is most valued . . . .
449 F.2d at 249. This rationale is not limited to
conversations within private residences, nor does Project
Veritas represent that it intends to limit its unannounced
recordings to public places, despite the majority’s
suggestions to the contrary. Ironically, Project Veritas
argues that “audiovisual recordings are uniquely reliable and
powerful methods of preserving and disseminating news and
information,” (internal quotation marks and citation
omitted), but sees no contradiction in its assertion that
turning these “uniquely reliable and powerful methods” on
private conversations poses no threat to privacy.
The secret recording of speech is far more destructive to
one’s privacy than merely having oral communications
heard and repeated. Recorded speech can be stored
indefinitely, disseminated widely, and viewed
repeatedly. In the age of the internet and generative artificial
intelligence (AI), surreptitious recording of in-person
conversations risks massive and ongoing invasions of
privacy. Today, anyone can access and learn how to use AI-
powered generative adversarial networks to create
convincing audio or video “deepfakes” that make people
appear to say or do things they never actually did. 8 With
these tools, “the only practical constraint on one’s ability to
produce a deepfake [is] access to training materials—that is,
8
Robert Chesney & Danielle Citron, Deepfakes and the New
Disinformation War, Foreign Affairs (Dec. 11, 2018),
https://www.foreignaffairs.com/articles/world/2018-12-11/deepfakes-
and-new-disinformation-war [https://perma.cc/TW6Z-Q97D].
PROJECT VERITAS V. SCHMIDT 57
audio and video of the person to be modeled.” 9 Id. The
importance of the right to have notice before one’s oral
communications are recorded cannot be overstated because
technology now allows recordings to be selectively edited,
manipulated, and shared across the internet in a matter of
seconds.
Project Veritas acknowledges the privacy interest at
stake in Oregon’s ban on eavesdropping, yet it denies that
the same privacy interests are at stake in Oregon’s ban on
secret recording of in-person conversations. This position is
unsupportable. The privacy interest implicated by secret
recordings of in-person conversations is grounded in the
same concerns as the privacy interest implicated by
eavesdropping; in both circumstances, a person’s oral
communications are shared with an unintended audience and
the speaker loses the ability to knowingly choose to speak,
or not speak, based upon that audience.
There is no question that journalists perform a vital role
in our society and their ability to engage in speech is entitled
to constitutional protection, but Project Veritas’s speech is
not the only speech implicated by the issues in this appeal.
By striking down Oregon’s carefully crafted statute, the
court denies Project Veritas’s interviewees the opportunity
to knowingly choose not to participate in the recordings
Project Veritas plans to create. Respectfully, the majority
overlooks that secret recordings can incorporate and
disseminate oral comments in ways the original speaker did
9
The majority argues this concern about deepfakes is overblown because
a person’s voice can also be captured through announced recording. This
misses the critical point: once a person has notice that her conversation
will be recorded, she can choose not only what to say, but also whether
to speak at all.
58 PROJECT VERITAS V. SCHMIDT
not intend, and that this implicates the “principle of
autonomy to control one’s own speech.” See Hurley v. Irish-
Am. Gay, Lesbian & Bisexual Grp. of Bos., 515 U.S. 557,
574 (1995). As the Supreme Court has explained, “The First
Amendment securely protects the freedom to make—or
decline to make—one’s own speech; it bears less heavily
when speakers assert the right to make other people’s
speeches.” Eldred v. Ashcroft, 537 U.S. 186, 221 (2003)
(emphasis added) (rejecting a First Amendment challenge to
a copyright extension); see also Harper & Row, Publishers,
Inc. v. Nation Enters., 471 U.S. 539, 559 (1985)
(recognizing, along with the freedom to express one’s views
publicly, the “concomitant freedom not to speak publicly”
(quoting Est. of Hemingway v. Random House, Inc., 244
N.E.2d 250, 255 (N.Y. 1968))).
Project Veritas stresses that its clandestinely recorded
conversations will be held mostly in public places like cafes
or parks. But the State has a significant interest in preventing
the secret recording of private conversations even when
those conversations occur in public or semi-public locations.
Everyday experiences tell us that “private talk in public
places is common.” Alvarez, 679 F.3d at 606 (citation
omitted). In many circumstances, even if a conversation
may be heard or overheard by multiple people, the State
maintains a significant interest in preventing its recording.
For example, the State of Oregon points out that this interest
is most obvious in multiparty gatherings that welcome
members of the public yet expect that attendees will not
make secret recordings of each other, such as twelve-step
groups, bible study, and religious services. Our society
respects those boundaries. Oregon has a significant interest
in preventing unannounced recordings of oral in-person
conversations.
PROJECT VERITAS V. SCHMIDT 59
2.
The next question is whether section 165.540(1)(c) is
narrowly tailored to that interest. I conclude it is. By
requiring that participants in a conversation be informed
before it is recorded—but not requiring that they consent to
the recording—the statute infringes as little as possible on
the process Project Veritas intends to use to create its speech,
while still protecting the interviewees’ right to knowingly
participate in Project Veritas’s speech—or not. Once a
person is on notice that she will be recorded, recording does
not violate any privacy interest. Keeping the Oregon
legislature’s actual purpose in mind, the statute is
exceptionally well tailored to ensuring that Oregonians’
conversations will not be recorded without their knowledge.
Consistent with that interest, the statute does not sweep in
photography or video recordings—but rather applies only to
recordings of oral communications. 10
There are some settings in which people cannot
reasonably expect not to have their oral statements recorded,
and the Oregon legislature crafted its statute to account for
those situations:
The prohibitions in subsection (1)(c) of this
section do not apply to persons who intercept
or attempt to intercept oral communications
that are part of any of the following
10
Although “private talk in public places is common,” Alvarez, 679 F.3d
at 606 (citation omitted), and people may reasonably expect, even in
public places, that their private conversations will not be recorded, a
person cannot reasonably expect that his visual image will not be
captured in public.
60 PROJECT VERITAS V. SCHMIDT
proceedings, if the person uses an
unconcealed recording device . . . :
(A) Public or semipublic meetings such as
hearings before governmental or
quasi-governmental bodies, trials,
press conferences, public speeches,
rallies and sporting or other events;
(B) Regularly scheduled classes or
similar educational activities in
public or private institutions; or
(C) Private meetings or conferences if all
others involved knew or reasonably
should have known that the recording
was being made.
Or. Rev. Stat. §165.540(6)(a). The exceptions in section
165.540(6)(a) permit Project Veritas to openly record at
public protests as it proposes to do. Project Veritas points
out that this exception does not render section 540(1)(c)
perfectly tailored to Oregon’s stated purpose. For example,
the law prohibits recording “a loud argument on the street, a
political provocateur on a crowded subway, [or] a drunk,
hate-filled conversation in a parking lot,” even though the
participants in such conversations lack any expectation that
their words will not be recorded. Section 165.540(1)(c)’s
notice requirement may be overbroad as applied to these
fringe cases, but far from demonstrating that a “substantial
portion of the burden on speech does not serve to advance
[Oregon’s] goals,” Ward, 491 U.S. at 799, Project Veritas’s
resort to these niche examples illustrates that the bulk of
Oregon’s protection against secret audio recording is
targeted at achieving the State’s significant interest. Nothing
PROJECT VERITAS V. SCHMIDT 61
more is required to meet intermediate scrutiny’s tailoring
requirement.
3.
Section 165.540(1)(c) also leaves open ample alternative
channels of communication for Project Veritas to engage in
investigative journalism and to communicate its message. It
is well-settled that an alternative channel need not be ideal,
but merely adequate. See Heffron v. Int’l Soc’y for Krishna
Consciousness, Inc., 452 U.S. 640, 647 (1981); Reynolds v.
Middleton, 779 F.3d 222, 232 n.5 (4th Cir. 2015) (“The
available alternatives need not be the speaker’s first or best
choice or provide the same audience or impact for the
speech.” (citation and internal quotation marks omitted));
Weinberg v. City of Chicago, 310 F.3d 1029, 1041 (7th Cir.
2002) (“An adequate alternative does not have to be the
speaker’s first choice.”). A restriction runs afoul of the
“alternative channels” requirement if it eliminates the only
method of communication by which speakers can convey
their message to a particular audience. See, e.g., Bay Area
Peace Navy v. United States, 914 F.2d 1224, 1229–30 (9th
Cir. 1990). But a regulation does not fail intermediate
scrutiny merely because the other available channels of
communication would convey the same message somewhat
less conveniently or effectively. See, e.g., Santa Monica
Nativity Scenes Comm. v. City of Santa Monica, 784 F.3d
1286, 1298–99 (9th Cir. 2015); One World One Fam. Now
v. City & County of Honolulu, 76 F.3d 1009, 1014 (9th Cir.
1996).
“We have observed that the Supreme Court generally
will not strike down a governmental action for failure to
leave open ample alternative channels of communication
unless the government enactment will foreclose an entire
62 PROJECT VERITAS V. SCHMIDT
medium of public expression across the landscape of a
particular community or setting.” Menotti v. City of Seattle,
409 F.3d 1113, 1138 (9th Cir. 2005) (alteration accepted)
(internal quotation marks and citation omitted). Project
Veritas has no colorable argument that it would be unable to
gather information to engage in investigative journalism, to
communicate its message “across the landscape of a
particular community or setting,” or to reach a particular
audience if it cannot secretly record in-person oral
interviews. Indeed, we made clear in Dietemann that
restricting surreptitious recording does not foreclose an
entire medium. 11 449 F.2d at 249.
Project Veritas retains ample alternative means of
engaging in investigative journalism and expressing its
message. It can employ all the tools of traditional
investigative reporting, including but not limited to talking
with whistleblowers and other inside sources, crowd-
sourcing information, researching public records, taking
photographs and recording videos that do not capture oral
conversations, and using Oregon’s freedom-of-information
laws. See, e.g., Or. Rev. Stat. §§ 192.311–.431, 192.610–
.695. It can also openly record during public and semi-
public meetings and events, Or. Rev. Stat.
§ 165.540(6)(a)(A), and, in other settings, provide notice
that it is recording without announcing that it is engaging in
investigative journalism. These many approaches to
11
The majority protests that Dietemann addressed whether the First
Amendment barred state tort liability for invasion of privacy, but my
colleagues do not try to explain why Dietemann’s observations about the
nature and history of investigative reporting are not applicable here.
PROJECT VERITAS V. SCHMIDT 63
traditional investigative reporting satisfy the alternative-
channels requirement.
III.
Rather than taking the straightforward path that this case
calls for, the majority strikes down all of section
165.540(1)(c) by making several unjustified leaps. First, the
majority decides that the two content-based exceptions
Project Veritas challenges cannot be severed because, it
reasons, the exceptions themselves are not unconstitutional
and severing them would raise other constitutional
questions. Despite strong indications to the contrary, the
majority next decides that the Oregon legislature would
rather strike down the state’s entire statutory protection for
conversational privacy rather than sever the two exceptions.
The majority also errs by invoking case law that addresses
statutes and ordinances adopted to protect others from
unwanted commercial or political speech. Finally, my
colleagues conclude that even if the two exceptions were
severed, section 165.540(1)(c) would still be
unconstitutional because it fails to leave open ample
alternative channels of communication. The majority makes
several missteps in its analysis.
A.
I agree that section 165.540(1)(c) would not survive
strict scrutiny viewed as a whole—indeed, Oregon never
argues otherwise. But the State of Oregon specifically
describes Oregon’s interest in in this statute as “protecting
Oregonians from having their private conversations
unwittingly made the subject of audio recordings without
their knowledge.” See Neff, 265 P.3d at 66 (“[T]he primary
concern underlying [section] 165.540(1)(c) was the
protection of participants in conversations from being
64 PROJECT VERITAS V. SCHMIDT
recorded without their knowledge.”). The majority redefines
Oregon’s interest, reasoning, because the act of recording a
conversation is protected speech, Oregon’s interest is more
accurately stated “as protecting individuals’ conversational
privacy from the speech of other individuals, even in places
open to the public.” Slip Op. at 25.
The analogy the majority draws, to case law addressing
statutes protecting individuals from the unwanted speech of
others, is flawed. See Cohen v. California, 403 U.S. 15, 21
(1971); Hill v. Colorado, 530 U.S. 703, 717 (2000); Berger
v. City of Seattle, 569 F.3d 1029, 1054 (9th Cir. 2009) (en
banc); Kuba v. 1-A Agric. Association, 387 F.3d 850, 861
n.10 (9th Cir. 2004)). The cases the majority cites involve
restrictions on speech intended to further different interests,
such as preventing the display of profane slogans in a
courtroom (Cohen); limiting abortion protestors’ unwanted
approaches toward clinic patients (Hill); shielding park-
goers from obnoxious behavior by street performers
(Berger); and protecting commercial patrons from the
speech of protesters (Kuba). None of the cases cited by the
majority address one speaker’s appropriation of another
person’s speech, as Project Veritas proposes to do. Our court
gravely missteps by ignoring that this appeal implicates not
only the First Amendment rights of the person creating a
recording, but also the First Amendment rights of those who
do not wish to have their speech recorded.
The majority incorrectly asserts that Wasden forecloses
my analysis. Slip Op. at 28. Wasden concerned a video of
cows being abused at an agricultural facility, not a secretly
recorded audio conversation between people. See 878 F.3d
at 1189–90. Wasden cannot bear the weight the majority
places on it because the video in that case did not require the
court to confront a secret audio recording that invaded
PROJECT VERITAS V. SCHMIDT 65
conversational privacy and captured the oral
communications of other people. The majority is also
incorrect to suggest that Wasden foreclosed any argument
that unannounced recordings that appropriate others’ speech
place a greater burden on privacy than other types of
unwanted expressive conduct. Wasden held that the creation
of a recording is speech protected by the First Amendment,
see id. at 1203; it did not purport to address whether the
invasion of privacy caused by secret recording of private
conversations is equivalent to the invasion of privacy caused
by being bombarded with unwanted speech in public places.
B.
The majority agrees that Oregon law governs
severability, but it concludes that the dangerous-felony and
law-enforcement exceptions cannot be severed from section
165.540(1)(c) for three wobbly reasons. First, the majority
decides that even without these exceptions, the statute would
be unconstitutional because it fails to leave open ample
alternative channels. I disagree with this conclusion for
reasons previously explained, and because my colleagues’
rationale contravenes our own court’s recognition that
investigative journalism does not require secret recording
devices or hidden cameras. See Dietemann, 449 F.2d at 249.
The majority also argues that Oregon law does not
permit the two challenged exceptions to be severed because
the exceptions themselves are not unconstitutional. The
majority misreads Oregon law. In particular, its reliance on
State v. Dilts, 103 P.3d 95 (Or. 2004) is sorely misplaced.
There, a defendant’s Sixth Amendment rights were violated
when a judge imposed a sentence above the state-law
guidelines without providing the defendant an opportunity to
argue the facts justifying an increased sentence to the jury.
66 PROJECT VERITAS V. SCHMIDT
Id. at 99. On appeal, the prosecution asked the court to sever
the state-law requirement that the defendant’s sentence be
within the guidelines even though neither party had
challenged the constitutionality of the mandatory guidelines.
Id. In other words, the prosecution asked the court to sever
the requirement not because it rendered the statute
unconstitutional, but because it rendered the defendant’s
sentence unconstitutional. It was only in response to the
prosecution’s unusual argument that the Oregon Supreme
Court explained it would not sever a statute that neither party
claimed was unconstitutional. Id.The Oregon Supreme Court makes no bright-line
distinction between exceptions that are themselves
unconstitutional and exceptions that render the remainder of
a statute unconstitutional. For instance, in Outdoor Media
Dimensions, the Oregon Supreme Court evaluated a
multifaceted state statute that regulated highway signs. 132
P.3d at 7. The plaintiffs challenged several of the statute’s
provisions, including one that required permits for highway
signs unrelated to the premises but exempted on-premises
signs. Id. at 9. The permit requirement and exemption were
adopted at the same time. See Or. Rev. Stat. §§ 377.725,
377.735 (1971). The court concluded that the on-premises
exemption was content based and that it rendered the
permitting requirement unconstitutional, but it upheld the
rest of the statute. Outdoor Media Dimensions, 132 P.3d at
19. Notably, the court did not consider the constitutionality
of the exemption—which allowed on-premises signs
without a permit—in isolation. Rather, the court concluded
that the “on-premises/off-premises distinction” was
unconstitutional and that severance of that provision was
appropriate. Id.; see also City Univ. v. State, Off. of Educ.
Pol’y & Plan., 885 P.2d 701, 703, 706–07 (Or. 1994)
PROJECT VERITAS V. SCHMIDT 67
(severing an exception that caused an Oregon statute to
discriminate against out-of-state schools in violation of the
Commerce Clause).
Turning to the remedy, the Outdoor Media Dimensions
court considered “the same two unpalatable choices that the
legislature would face,” namely, whether to strike only the
exemption from the permitting requirement, and require
permits for “thousands of individuals and businesses”; or to
instead strike the permitting requirement entirely. 132 P.3d
at 19. The court decided the outcome should turn on
legislative intent alone, and ultimately invalidated the entire
permitting requirement because it concluded that the
legislature would not have enacted it without the
simultaneously enacted exemption. Id. Here, by contrast, I
see no viable argument that the Oregon legislature did not
intend the dangerous-felony exception and law-enforcement
exception to be severable, because section 165.540(1)(c)
was operative for decades before these exceptions were
added. See AAPC, 140 S. Ct. at 2353. The legislature did
not direct that the exceptions may not be severed, they are
not interconnected, nor is the remaining part of the statute
incomplete or inoperable without them. Or. Rev. Stat.
§ 165.540.
Finally, the majority argues that Oregon courts would
invalidate all of section 165.540(1)(c), not just the content-
based exceptions, because severing those exceptions would
raise other constitutional concerns. 12 To support this
contention, the majority cites State v. Borowski, 220 P.3d
12The majority also relies on the legislative history of the challenged
exceptions, taking the unusual step of calling out statements made by the
Oregon State Sheriffs’ Association and the ACLU to divine legislative
intent. Slip Op. at 9–10.
68 PROJECT VERITAS V. SCHMIDT
100, 109 (Or. Ct. App. 2009), which considered, among
other factors, the legislature’s preference to avoid enacting
bills that raise serious questions of constitutionality. But
Borowski, much like Outdoor Media Dimensions, concerned
an exception enacted simultaneously with the challenged
provision. See id. at 109; Or. Rev. Stat. § 164.887 (1999).
Because the Oregon legislature enacted section
165.540(1)(c) as a stand-alone provision that operated for
decades before it adopted either of the challenged
exceptions, we are not left to wonder whether the legislature
would enact section 165.540 on its own—it did exactly that
in 1959. See State ex rel. Musa v. Minear, 401 P.2d 36, 39
(Or. 1965) (declaring an amended state statute invalid and
reverting to the pre-amendment statute).
Failing to sever the two exceptions makes even less
sense when one considers that the majority concedes the
First Amendment protects the right to record law-
enforcement officers in public and the right to make
unannounced recordings during felonies that endanger
human life. See Askins, 899 F.3d at 1044; Obsidian Fin.
Grp., LLC v. Cox, 740 F.3d 1284, 1291–92 (9th Cir. 2014);
Fordyce v. City of Seattle, 55 F.3d 436, 439 (9th Cir. 1995).13
13
Other circuits agree. On recording law-enforcement officers, see, for
example, Glik v. Cunniffe, 655 F.3d 78, 85 (1st Cir. 2011); Fields v. City
of Philadelphia, 862 F.3d 353, 359 (3d Cir. 2017); Turner v. Lieutenant
Driver, 848 F.3d 678, 688 (5th Cir. 2017); Alvarez, 679 F.3d 583; Smith
v. City of Cumming, 212 F.3d 1332, 1333 (11th Cir. 2000). Indeed, the
First Circuit has held that the First Amendment right to record law
enforcement is “clearly established” even for the purposes of qualified
immunity. See Glik, 655 F.3d at 85 (“[A] citizen’s right to film
government officials, including law enforcement officers, in the
discharge of their duties in a public space is a basic, vital, and well-
established liberty safeguarded by the First Amendment.”). On
recording crimes, see, for instance, Adventure Outdoors, Inc. v.
PROJECT VERITAS V. SCHMIDT 69
Because the exceptions to section 540(1)(c) permit conduct
protected by the federal constitution, both exceptions could
be struck without changing the speech that is permitted in
Oregon. Cf. Alvarez, 679 F.3d at 608 (enjoining Illinois
from enforcing its recording prohibition as applied to open
audio recording of law-enforcement officers engaged in their
official duties in public places). Nevertheless, the majority
concludes that because the Oregon legislature included these
carveouts, Oregon’s entire notice requirement must receive
strict scrutiny. The majority’s reasoning places the
legislature in a catch-22: the First Amendment requires it to
carve out the two challenged exceptions, but because the
legislature included the carveouts, the majority decides the
entire statute becomes subject to strict scrutiny. We need not
adopt this topsy-turvy approach; we should simply sever the
two challenged exceptions.
C.
Perhaps the weakest link in the majority’s opinion is its
conclusion that section 165.540(1)(c) does not leave open
ample alternative channels of communication because it
constitutes an “absolute prohibition on a particular type of
expression,” namely “unannounced audiovisual recordings.”
Setting aside that the statute does not address video
recording, 14 I disagree that Oregon’s ban on unannounced
audio recording eliminates an entire medium of public
expression. The majority cites Linmark Assocs., Inc. v.
Bloomberg, 552 F.3d 1290, 1298 (11th Cir. 2008) (observing that speech
that “alleged violations of federal gun laws” involved a matter of public
concern); Boule v. Hutton, 328 F.3d 84, 91 (2d Cir. 2003) (holding that
an article addressing art-market fraud “is certainly protected” under the
First Amendment).
14
See Or. Rev. Stat. § 165.535(1).
70 PROJECT VERITAS V. SCHMIDT
Township of Willingboro, 431 U.S. 85, 93 (1977); City of
Ladue v. Gilleo, 512 U.S. 43, 56–57 (1994); McCullen v.
Coakley, 573 U.S. 464, 487–90 (2014); United Bhd. of
Carpenters & Joiners of Am. Loc. 586 v. NLRB, 540 F.3d
957, 969 (9th Cir. 2008); and Foti v. City of Menlo Park, 146
F.3d 629, 635 (9th Cir. 1998) in support of its alternative-
channels holding, but these cases all miss the mark.
In Linmark, the Supreme Court invalidated as content
based a township’s ban on “For Sale” signs, which it had
enacted “to stem what it perceive[d] as the flight of white
homeowners from a racially integrated community.” 431
U.S. at 86. The Court stressed that the township council was
concerned “with the substance of the information
communicated” by the signs and that the ban was not
“unrelated to the suppression of free expression.” Id. at 93,
96 (quoting United States v. O'Brien, 391 U.S. 367, 377
(1968)). Linmark’s language cannot be stretched to imply
that any alternative that is “less effective” than a speaker’s
chosen medium is “far from satisfactory.” Slip Op. at 35
(quoting Linmark, 431 U.S. at 93). Rather, Linmark
explained that the Court doubted whether the ordinance left
open “ample alternative channels for communication”
because the alternatives were “less effective,” and also
because those alternatives “involve[d] more cost and less
autonomy than ‘For Sale’ signs [and] [we]re less likely to
reach persons not deliberately seeking sales information.”
Linmark, 431 U.S. at 93 (internal citations omitted). After
Linmark, the Supreme Court clarified that an alternative
need not be a speaker’s first or best choice, but is adequate
if it “permits the more general dissemination of a
message.” Frisby v. Schultz, 487 U.S. 474, 483 (1988); see
Heffron, 452 U.S. at 647 (“[T]he First Amendment does not
guarantee the right to communicate one’s views at all times
PROJECT VERITAS V. SCHMIDT 71
and places or in any manner that may be desired.”). Project
Veritas does not argue that alternatives to surreptitious
recording involve more cost, or less autonomy, or otherwise
make their message less likely to reach its intended audience.
Project Veritas’s complaint is that Oregon’s statute will
impede its ability to gather information.
City of Ladue also fails to support Project Veritas’s
cause. There, the Supreme Court held that a restriction on
residential signs did not leave open adequate alternative
channels of communication because “[d]isplaying a sign
from one’s own residence often carries a message quite
distinct from placing the same sign someplace else, or
conveying the same text or picture by other means.” 512
U.S. at 56. City of Ladue emphasized the long-held tradition
of respect for individual liberty in the home and for a
person’s ability to speak there. Id. at 58. Here, by contrast,
Project Veritas does not argue that reporting on in-person
oral conversations without surreptitiously obtained audio
recordings would convey a different message, only that its
information gathering would be somewhat less effective, and
there is no comparable tradition of respect for surreptitious
recording. Indeed, surreptitious recording is generally
considered a breach of journalistic ethics except when
certain narrow criteria are met. 15
McCullen is even less applicable. There, the Court
struck down a statute establishing buffer zones around
abortion clinics because the statute was insufficiently
tailored. The Court did not even reach “whether the Act
15
See, e.g., Radio Television Digital News Ass’n (RTDNA), Guidelines
for Hidden Cameras, https://www.rtdna.org/hidden-cameras
[https://perma.cc/8MQ3-P8A9].
72 PROJECT VERITAS V. SCHMIDT
leaves open ample alternative channels of communication.”
McCullen, 573 U.S. at 496 n.9.
The majority correctly observes that the First
Amendment’s protections “extend to the ‘right to choose a
particular means or avenue of speech . . . in lieu of other
avenues,’” United Bhd., 540 F.3d at 969 (quoting Foti, 146
F.3d at 641), but section 165.540(1)(c) governs how, not
whether, Project Veritas can use recording devices. The
statute thus permissibly “regulate[s] the manner of speech in
a content-neutral way,” without “infring[ing] on an
individual’s right to select the means of speech.” Foti, 146
F.3d at 641–42.
The majority and Project Veritas both argue that
recordings are unique in their trustworthiness, “self-
authenticating character,” and ease of distribution, ignoring
that surreptitious audio recording is a uniquely effective
means for reporters to gather information precisely because
it is uniquely effective at invading privacy. The very aspects
of surreptitious audio recording that render it distinct from
other modes of communication, such as its discreetness and
its ability to widely disseminate the contents of a
conversation, are the same aspects that render it particularly
damaging to privacy. 16
The majority’s alternative-channels analysis is
particularly concerning because it has no obvious limits. My
colleagues suggest that their opinion will be cabined because
16
It is also worth noting that the self-authenticating character of audio
recordings is rapidly eroding as modern technology renders “deepfakes”
ever more accessible and difficult to distinguish from actual recordings.
See generally Bobby Chesney & Danielle Citron, Deep Fakes: A
Looming Challenge for Privacy, Democracy, and National Security, 107
CAL. L. REV. 1753, 1755–68 (2019).
PROJECT VERITAS V. SCHMIDT 73
they view section 165.540(1)(c) as an outlier among other
states’ limitations on recording conversations. But if it is
enough to show that newsworthy information could be
obtained by a particular method, the majority’s rationale
might well apply to Oregon’s eavesdropping statute, or to
narrower conversational privacy statutes adopted in other
states. After all, eavesdropping and unannounced recording
in non-public locations are also effective methods to gather
information of public concern that cannot be otherwise
obtained. Though the majority disavows the suggestion that
its reasoning could be applied to strike down eavesdropping
statutes, it is hard to see why the forty other states that have
adopted more limited conversational privacy statutes are not
vulnerable in light of today’s opinion.
IV.
“[G]enerally applicable laws do not offend the First
Amendment simply because their enforcement against the
press has incidental effects on its ability to gather and report
the news.” Cohen v. Cowles Media Co., 501 U.S. 663, 669
(1991). In this case, we should simply sever the
constitutionally suspect exceptions that Project Veritas
challenges, and uphold the remainder of
section 165.540(1)(c).
74 PROJECT VERITAS V. SCHMIDT
Appendix A
States allowing recording without providing notice to
or obtaining consent from the recording’s subjects when
created in a place where the subjects lack a reasonable
expectation of privacy:
Alabama: Ala. Code §§ 13A-11-30, 13A-11-31; Chandler v.
Alabama, 680 So. 2d 1018, 1026 (Ala. Crim. App. 1996)
Arizona: Ariz. Rev. Stat. Ann. §§ 13-3001(8), 13-
3005(A)(2), 13-3012(9); Arizona v. Hauss, 688 P.2d 1051,
1056 (Ariz. Ct. App. 1984)
Arkansas: Ark. Code Ann. §§ 5-16-101(a), (b), 5-60-120(a)
California: Cal. Penal Code § 632; Flanagan v. Flanagan,
27 Cal. 4th 766, 768 (2002); Kearney v. Salomon Smith
Barney, Inc., 39 Cal. 4th 95, 117–18 (2006)
Colorado: Colo Rev. Stat. Ann. §§ 18-9-301(8), 18-9-
304(1)(a)
Connecticut: Conn. Gen. Stat. Ann. § 53a-189a(a)(1);
Connecticut v. Panek, 177 A.3d 1113, 1126 (Conn. 2018)
Delaware: Del Code Ann. tit. 11, §§ 2401(13), 2402(a)(1),
(c)(4)
District of Columbia: D.C. Code §§ 23-541(2), 23-542(a)(1),
(b)(3)
Florida: Fla. Stat. §§ 934.02(2), 934.03(1)(a), (2)(d);
McDonough v. Fernandez-Rundle, 862 F.3d 1314, 1319
(11th Cir. 2017); Florida v. Inciarrano, 473 So. 2d 1272,
1275 (Fla. 1985); Dept. of Ag. & Con. Servs. v. Edwards,
654 So. 2d 628, 632–33 (Fla. Dist. Ct. App. 1995)
Georgia: Ga. Code Ann. §§ 16-11-60(3), 16-11-62(1), 16-
11-66(a); Suggs v. Georgia, 854 S.E.2d 674, 680 (Ga. 2021)
PROJECT VERITAS V. SCHMIDT 75
Hawaii: Haw. Rev. Stat. §§ 803-41, 803-42(a)(1), (b)(3)(A);
Hawaii v. Graham, 780 P.2d 1103, 1110 (Haw. 1989)
Idaho: Idaho Code Ann. §§ 18-6701(2), 18-6702(1)(a),
(2)(d)
Illinois: 720 Ill. Comp. Stat. Ann. §§ 5/14-2(a)(1), (2), 5/14-
1(a), (d), (g)
Iowa: Iowa Code Ann. §§ 727.8(2), (3)(a), 808B.1(8),
808B.2(1)(a), (2)(c)
Kansas: Kan. Stat. Ann. § 21-6101(a)(4), (f)
Louisiana: La. Stat. Ann. §§ 15:1302(15), 15:1303(A)(1),
(C)(4); Marceaux v. Lafayette City-Par. Consol. Gov’t, 731
F.3d 488, 495 & n.5 (5th Cir. 2013)
Maine: 15 Me. Rev. Stat. §§ 709(4), (5), 710(1)
Maryland: Md. Code Ann., Cts. & Jud. Proc. §§ 10-401(13),
10-402(a)(1), (c)(3); Agnew v. Maryland, 197 A.3d 27, 34–
35 (Md. 2018)
Michigan: Mich. Comp. Laws §§ 750.539a, 750.539c,
750.539d(1), Bowens v. Ary, Inc., 794 N.W.2d 842, 843–44
(Mich. 2011); Kasper v. Rupprecht, No. 312919, 2014 WL
265542, at *2 (Mich. Ct. App. Jan. 23, 2014) (per curiam);
Lewis v. LeGrow, 670 N.W.2d 675, 684 (Mich. Ct. App.
2003); Sullivan v. Gray, 324 N.W.2d 58, 60–61 (Mich. Ct.
App. 1982) (per curiam)
Minnesota: Minn. Stat. §§ 626A.01, 626A.02; Minnesota v.
Vaughn, 361 N.W. 2d 54, 57–58 (Minn. 1985)
Mississippi: Miss. Code Ann. §§ 41-29-501(j), 41-29-
531(e), 41-29-533(1); Jackson v. Mississippi, 263 So. 3d
1003, 1011 (Miss. Ct. App. 2018); Ott v. Mississippi, 722
So. 2d 576, 582 (Miss. 1998)
76 PROJECT VERITAS V. SCHMIDT
Nebraska: Neb. Rev. Stat. Ann. §§ 86-283, 86-290(1)(a),
(2)(c); Nebraska v. Biernacki, 465 N.W.2d 732, 735 (Neb.
1991)
Nevada: Nev. Rev. Stat. Ann. § 200.650; Lane v. Allstate
Ins. Co., 969 P.2d 938, 940 (Nev. 1998)
New Hampshire: N.H. Rev. Stat. Ann. §§ 570-A:1(II), 570-
A:2(I)(a); Fischer v. Hooper, 732 A.2d 396, 401 (N.H.
1999); New Hampshire v. Lamontagne, 618 A.2d 849, 851
(N.H. 1992)
New Jersey: N.J. Stat. Ann. §§ 2A:156A-2(b), 2A:156A-
3(a), 2A:156A-4(d)
North Carolina: N.C. Gen. Stat. Ann. §§ 15A-286(17), 15A-
287(a)(1)
North Dakota: N.D. Cent. Code Ann. §§ 12.1-15-02(1)(a),
(3)(c), 12.1-15-04(5)
Ohio: Ohio Rev. Code Ann. §§ 2933.51(B), 2933.52(A)(1),
(B)(4); Ohio v. Childs, 728 N.E.2d 379, 388 (Ohio 2000)
Oklahoma: Okla. Stat. Ann. tit. 13, §§ 176.2(12), 176.3(1),
(2), 176.4(5); K.F. v. Oklahoma, 797 P.2d 1006, 1007 (Okla.
Crim. App. 1990)
Pennsylvania: 18 Pa. Cons. Stat. Ann. §§ 5702, 5703(1),
5704(4); Pennsylvania v. Mason, 247 A.3d 1070, 1081 (Pa.
2021)
Rhode Island: R.I. Gen. Laws Ann. §§ 11-35-21(a)(1),
(c)(3), 12-5.1-1(10)
South Carolina: S.C. Code Ann. §§ 17-30-10, 17-30-15(2),
17-30-20(1), 17-30-30(C)
South Dakota: S.D. Codified Laws §§ 23A-35A-1(6), (10),
23A-35A-20(1), (2); South Dakota v. Owens, 643 N.W.2d
PROJECT VERITAS V. SCHMIDT 77
735, 753 (S.D. 2002); South Dakota v. Braddock, 452
N.W.2d 785, 788 (S.D. 1990)
Tennessee: Tenn. Code Ann. §§ 39-13-601(a)(1)(A), (b)(5),
40-6-303(14)
Texas: Tex. Penal Code Ann. § 16.02(b)(1), (c)(4); Tex.
Code Crim. Proc. Ann. art. 18A.001(19)
Utah: Utah Code Ann. §§ 77-23a-3(13), 77-23a-4(1)(b)(i),
(7)(b)
Virginia: Va. Code Ann. §§ 19.2-61, 19.2-62(A)(1), (B)(2)
Washington: Wash. Rev. Code Ann. § 9.73.030(1)(b);
Washington v. Roden, 321 P.3d 1183, 1188 (Wash. 2014)
(en banc); Washington v. Kipp, 317 P.3d 1029, 1034 (Wash.
2014) (en banc)
West Virginia: W. Va. Code §§ 62-1D-2(i), 62-1D-3(a)(1),
(e); West Virginia v. Mullens, 650 S.E.2d 169, 187 (W. Va.
2007)
Wisconsin: Wis. Stat. Ann. §§ 968.27(12), 968.31(1)(a),
(2)(c)
Wyoming: Wyo. Stat. Ann. §§ 7-3-701(xi), 7-3-702(a)(i),
(b)(iv)
States prohibiting recording without providing notice
to or obtaining consent from the recording’s subjects
when created in a place where the subjects lack a
reasonable expectation of privacy:
Alaska: Alaska Stat. Ann. §§ 42.20.390(9), 42.20.310(a)(1)
Kentucky: Ky. Rev. Stat. Ann. §§ 526.010, 526.020
78 PROJECT VERITAS V. SCHMIDT
Massachusetts: Mass. Gen. Laws Ann. ch. 272, § 99(B)(2),
(4), (C)(1); Curtatone v. Barstool Sports, Inc., 169 N.E.3d
480, 483 (Mass. 2021)
Montana: Mont. Code Ann. § 45-8-213(1)(c); Montana v.
DuBray, 77 P.3d 247, 263 (Mont. 2003); Montana v. Lynch,
969 P.2d 920, 922 (Mont. 1998)
Oregon: Or. Rev. Stat. § 165.540(1)(c)
States without laws regarding the recording of in-
person conversations:
Indiana, Missouri, New Mexico, New York, Vermont