Every summer, CLDC is honored to host future movement attorneys as part of our law clerk program. We believe lawyers have much to contribute to movements outside of the courtroom and hope their time with CLDC as clerks prepares them for that important work. As part of our clerk program, we invite their participation on the blog and social media with the intention to provide that type of opportunity for movement engagement.
We invited Maddie Reese, a third-year law student at the University of Oregon, to write about this change in Oregon law because of her unique background and experience. Before coming to law school, Maddie worked as a journalist covering education, local and state politics, and many other things under the sun in Washington, Nevada, and California. When she’s not in class, you can find her curled up with a good book and her two cats, or outside running on one of Eugene’s many trails.
Until last week, secretly recording an in-person conversation in Oregon without the consent of everyone involved could result in getting charged with a misdemeanor crime.[1] For example, if you were a journalist who wanted to record an interview, you would have needed to inform every participant that you intended to record the conversation before you pressed “start” on your phone or camera. If you didn’t do that, you would have been subject to a misdemeanor offense and potential fines.[2]
However, the Ninth Circuit last week overturned Oregon’s strict recording law with its decision in Project Veritas v. Schmidt. The court ruled that Oregon’s recording law was an unconstitutional violation of the First Amendment right to free speech.
Oregon’s law was an outlier while in effect. Only four other states have similar laws still on the books (Alaska, Kentucky, Massachusetts, and Montana). Most states (41 of them) allow secretly recording in-person conversations “in a place where the subjects lack a reasonable expectation of privacy,” while five others (Indiana, Missouri, New Mexico, New York, and Vermont) do not have any recording laws at all.
The Project Veritas ruling does not affect recordings of phone calls in Oregon, which has only ever required the consent of one party to the conversation.
In an interview with Law360, Roy Kaufmann, a spokesman for the Oregon attorney general, said Monday that the state was disappointed in the majority’s decision. “We are considering seeking further review,” Kaufmann told Law360. “If this decision stands, the Oregon legislature should act swiftly to consider whether to fix our laws to reinstate some protections against secretly recording conversations.”
Oregon’s recording law had been in place for more than half a century, but far-right group Project Veritas sued over the law in 2020. The group alleged that recording prohibition prevented it from conducting “investigations” into offices responsible for enforcing Oregon’s public records law, by recording “undercover interviews with officers and staff” in public places. In addition, Project Veritas alleged that the Oregon law prevented it from investigating the rise in protests and clashes “between the police and members of Antifa” by secretly recording their interactions.[3]
Undermining Project Veritas’ stated purpose, Oregon’s statute already had several exceptions to the prohibition on recording: One could record a conversation without consent “during a felony that endangers human life,” as well as conversations “in which a law enforcement officer is a participant.”[4]
It is important to note that while Project Veritas claimed its “journalism” was impacted by this law, the goals of this far-right group are far from expanding access to the truth. Time and time again, Project Veritas’s “reporting” has been debunked[5] for being deceitful, untruthful, and harmful.
After reviewing Project Veritas’ challenge, however, the Ninth Circuit agreed that Oregon does not have a compelling interest “in protecting individuals’ conversational privacy” from recording in “places open to the public.” Instead, the court said that making recordings of speech is an act of creating speech and cannot be regulated in this way by the government.
Without a prohibition on secret recording, many progressive groups can do investigative documentary work – that has led to change in the past – without fear of prosecution. For example, in Animal Legal Def. Fund.v. Wasden[6], animal rights activists secretly recorded and exposed animal abuses on a dairy farm in Idaho. This exposé provided important information relevant to the public interest. However, after complaining and lobbying from ag interests, the Idaho legislature responded by enacting a statute targeting undercover investigation of agricultural operations. Recognizing that this law was enacted to restrict only certain types of speech, however, the Ninth Circuit overturned Idaho’s law.
While good journalism usually does not require secretly recording sources[7], sometimes there is limited access to information relevant to the public interest that merits the use of these methods.[8] Sometimes journalists find secrecy necessary to ensure their safety while reporting, especially if announcing their presence as a journalist would make them a target.[9] In this way, the repeal of Oregon’s recording law could be seen as beneficial for activists and journalists alike.
Your conversations and actions could be recorded at almost any time. This is why Project Veritas sued over the right to record: If you’re at a protest or action in Oregon and have a conversation, it could be recorded – by anyone – and no one would have to tell you. This is a blow to privacy and highlights the need for activists to have safety practices and procedures in place to protect themselves from the devious activities of groups like Project Veritas. In light of the Project Veritas case, it’s more important than ever to know who you can trust when you’re out protesting, providing mutual aid, or engaging in direct action.
[1] Or. Rev. Stat. § 165.540 (1)(c) “A person may not…Obtain 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 not all participants in the conversation are specifically informed that their conversation is being obtained.”
[2] State v. Neff, 246 Ore. App. 186, State v. Bichsel, 101 Ore. App. 257, State v. Knobel, 97 Ore. App. 559
[4] Or. Rev. Stat. § 165.540 (5)
[6] Animal Legal Def. Fund.v. Wasden 878 F.3d 1184, (9th Cir. 2018)
