Oregon appeals court says Project Veritas not allowed to do undercover reporting in state

In a Tuesday ruling, the Ninth Circuit Court of Appeals ruled against Project Veritas in a lawsuit regarding Oregon’s law banning undercover recording without letting involved parties know of the recording. Undercover reporting is a cornerstone of Project Veritas’ reporting, which has captured over the years many officials speaking candidly on video about topics while unknowingly being filmed.

"The en banc court affirmed the district court’s dismissal of a complaint brought by Project Veritas, a nonprofit media organization engaged almost exclusively in undercover journalism, alleging that Oregon’s conversational privacy statute violates the First Amendment, the court wrote in its ruling.

"Oregon’s conversational privacy statute requires that notice be given before oral conversations may be recorded," with exceptions being granted such as the "felony exception," which "allows a recording of a conversation during a felony that endangers human life" and a law enforcement exemption, which "allows a recording of a conversation in which a law enforcement officer is a participant if certain conditions are met," the ruling added.

The court said that the privacy statute "is content-neutral because it does not discriminate on the basis of viewpoint or restrict discussion of an entire topic. Rather it places neutral, content-agnostic limits on the circumstances under which an unannounced recording of a conversation may be made."

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

In a concurring opinion, Judge Mark Bennett that "there is no historical or precedential foundation to support the holding that the purely mechanical act of pressing an audio record button in secret or without announcement is always protected speech," and that this act is not speech protected by the First Amendment. "With that understanding, Project Veritas’s facial challenge fails."

Project Veritas wrote in response to the ruling, "This decision is a setback in the fight for free speech and anti-corruption journalists. It's clear our opponents want to criminalize undercover journalism and make it harder to expose wrongdoing in Oregon. We intend to take this battle to the Supreme Court."

Oral arguments for the case were held in June. In the hearing before the 11-judge panel, Benjamin Barr, a lawyer for Project Veritas, argued that the law violated the group’s right to free speech, saying, "A journalists' choice about who to record and how to do it implicate important 1st Amendment concerns," per Reuters.

Oregon Solicitor General Benjamin Gutman argued that the law does not violate the First Amendment because it was "content-neutral" and added that private conversations are not “expressive conduct.”

A three-judge panel of the court had ruled in 2023 in favor of Project Veritas and struck down the law. That ruling was vacated when the 11-judge panel agreed to rehear the case.

Veritas sued the state in 2020 over its law, first passed in 1959 and amended in 1979 and 2015, which prohibits recording conversations without informing all participants. The group claimed that undercover journalism, which the group conducts by way of undercover video with officials, was protected as free speech under the First Amendment. The group wanted to record conversations at the George Floyd riots and protests that had sparked up in the summer of 2020, but the state’s law had prevented them from doing so.

The Foundation for Individual Rights and Expression (FIRE) joined with People for the Ethical Treatment of Animals (PETA), Animal Outlook, and multiple constitutional law professors to argue that undercover recordings are essential to the free press.