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 at

350 & 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

12

The 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