A federal appeals court panel ruled Monday that an Oregon law that makes recording of a conversation without consent a crime violates the First Amendment.
Judge Sandra S. Ikuta, an appointee of former President George W. Bush, wrote in the majority opinion that the statute discriminated on the basis of content because it exempted recordings of law enforcement officers engaged in their work but banned recordings of other government employees without their consent.
“In general, the government does not have a compelling interest in protecting individual privacy against unwanted communications . . . in areas open to the public unless the audience’s “substantial privacy interests are being invaded in an essentially intolerable manner,” Ikuta wrote.
She added that Oregon also had not enacted a statute that is sufficiently “narrowly tailored” to survive.
“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,” Ikuta continued. “[The statute] does not distinguish between passive and unthreatening acts and intolerable intrusions. Under our case law, that does not constitute narrow tailoring.”
Ikuta explained that individuals who are recorded in public, but who do not want to be, can sue for invasion of privacy and, if the recording is faked, “the victims can turn to defamation actions for recourse.”
Alaska-based Judge Morgen Christen dissented. She argued that the court should sever the “content neutral” parts of the Oregon statute and apply “intermediate scrutiny” to them while treating the exceptions alleged to be content-based regulations of speech as time, place, and manner restrictions.
The state legislature, Christen said, intended that “Oregonians would be free to engage in the uninhibited exchange of ideas and information, 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, a conservative activist organization, filed the lawsuit that led to the ruling.
The case is Project Veritas v. Schmidt, No. 22-35271.
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