Amicus Curiae Brief — Project Veritas, et al., Petitioners v. Nathan Vasquez, in His Official Capacity as Multnomah County District Attorney, et al.

No. 24-1061

In the

Supreme Court of the United States

________________________________________________

PROJECT VERITAS, et al.,

Petitioners,

v.

NATHAN VASQUEZ, in His Official Capacity as

Multnomah County District Attorney, et al.,

Respondents.

____________________________________________________

On Petition For A Writ of Certiorari to the

United States Court of Appeals for the Ninth

Circuit

________________________________________________

BRIEF OF AMICUS CURIAE

LIFE LEGAL DEFENSE FOUNDATION

IN SUPPORT OF PETITIONERS

________________________________________________

CATHERINE SHORT

Counsel of Record

SHEILA A. GREEN

LIFE LEGAL DEFENSE FOUNDATION

PO Box 2105

Napa, CA 94558

(707) 224-6675

kshort@lifelegal.org

Counsel for Amicus Curiae

i

TABLE OF CONTENTS

TABLE OF CONTENTS ............................................ i

TABLE OF AUTHORITIES ..................................... ii

INTERESTS OF AMICUS CURIAE ........................ 1

SUMMARY OF ARGUMENT .................................. 1

ARGUMENT ............................................................. 2

I.

Oregon’s Statute Unjustifiably

Handicaps Undercover Reporting. ................ 2

II.
Undercover Journalism Fills a

Necessary Niche in the Field of News

Reporting, and the Ninth Circuit

Opinion Threatens to Undermine Its

Effectiveness. .................................................. 6

A.
Nellie Bly – Ten Days in a Madhouse ........ 7

B.
Upton Sinclair – The Jungle ....................... 8

C.
Jay McMullen/CBS – Biography of a

Bookie Joint ............................................... 11

D.
ABC’s Primetime Live – the Desnick

Eye Center ................................................. 13

E.
Rana Ayyub – Gujarat Files ..................... 14

F.
Ken Silverstein – Their Men in

Washington ................................................ 16

G.
James O’Keefe and Hanna Giles –

ACORN Sting............................................. 18

III.
Audio Recordings Can Provide Vital

Corroboration of Explosive Claims of

Corruption. ................................................... 20

CONCLUSION ........................................................ 22

ii

TABLE OF AUTHORITIES

Cases

Brown v. Ent. Merchs. Ass’n,

564 U.S. 786 (2011) .................................. 2, 3, 4, 5

Dobbs v. Jackson Women’s Health Org.,

597 U.S. 215 (2022) .............................................. 1

J.H. Desnick v. Am. Broad. Cos.,

44 F.3d 1345 (7th Cir. 1995) .............................. 13

Roe v. Wade,

410 U.S. 113 (1973) .............................................. 1

Sorrell v. IMS Health,

564 U.S. 552 (2011) .......................................... 3, 4

Superior Films, Inc. v. Dep't of Educ.,

346 U.S. 587 (1954) ...................................... 3, 4, 5

Terminiello v. Chicago,

337 U.S. 1 (1949) ................................................ 21

Statutes

Or. Rev. Stat. § 165.540(1)(c) ..................... 1, 2, 5, 22

Constitutional Provisions

U.S. Const. amend. I ..................................... 2, 3, 4, 5

Other Authorities

An Exclusive Excerpt from My Undercover

Investigation, ‘Gujarat Files, ’ Rana

Ayyub’s Newsletter (Rana Ayyub), Mar.

26, 2022),

https://ranaayyub.substack.com/p/gujar

at-files-excerpt-rana-ayyub-modi....................... 15

iii

Arlisha R. Norwood & Mariana

Brandman, Nellie Bly, National

Women’s History Museum (last visited

Apr. 18, 2025),

https://www.womenshistory.org/educati

on-resources/biographies/nellie-bly-0 .................. 7

Billy Perrigo ‘While I’m Alive, I’ll Keep

Speaking.’ Journalist Rana Ayyub’s

Fight to Expose the Truth in

India, Time (Oct. 22, 2021, 5:52 AM

EDT), https://time.com/6108251/ranaayyub-india-journalism-modi/ ............................ 16

Brooke Kroeger, Undercover Reporting:

The Truth About Deception, 256 (2012),

https://library.oapen.org/bitstream/hand

le/20.500.12657/31391/1/628774.pdf .. 4, 12, 17, 19

CBS News Producer Jay McMullen, Early

Hidden-Camera User Who Pioneered

Investigative Television Journalism, Is

Dead at 90, Paramount Press Express

(3/10/2012),

https://www.paramountpressexpress.co

m/cbs-news-andstations/releases/?view=30985 ........................... 12

David Moss & Marc Campasano, The

Jungle and the Debate over Federal

Meat Inspection in 1906, Harvard

Business School (last updated Oct.

2017),

https://www.hbs.edu/faculty/Pages/item.

aspx?num=50388 ................................................ 10

iv

Greg Vitiello, Where are the

Documentaries of Yesteryear?, 36

Television Q. 7-8 (2006),

https://www.worldradiohistory.com/Arc

hive-Television-Quarterly/TVQ-2006Spring-Summer.pdf ............................................ 12

https://www.thefreelibrary.com/Their+men

+in........................................................................ 17

James Diedrick, The Jungle, The

Encyclopedia of Chicago, (2005),

http://www.encyclopedia.chicagohistory.

org/pages/679.html ............................................... 9

Jesse Greenspan, 7 Things You May Not

Know About ‘The Jungle’, History (last

updated Feb. 17, 2025),

https://www.history.com/articles/7things-you-may-not-know-about-thejungle ..................................................................... 9

Justin Pritchard, How the ACORN ‘Pimp

and Hooker’ Videos Came to Be, Seattle

Times (last updated Sept. 23, 2009,

10:31 PM),

https://www.seattletimes.com/nationworld/how-the-acorn-pimp-and-hookervideos-came-to-be/............................................... 19

Lawrence W. Reed, Of Meat and Myth,

Mackinac Center for Public Policy (Feb.

13, 2002),

https://www.mackinac.org/4084 ................... 10, 11

Lisa Green, Desnick Clinics Named in

Lawsuit, Rockford Register Star, Sep.

v

20, 1996, at 1E,

https://www.molllawgroup.com/files/des

nick_clinics_named_in_lawsuit.pdf ................... 14

Muckraker Journalism, Encyclopedia

Britanica (last updated Feb. 10, 2025),

https://www.britannica.com/topic/muckr

aker........................................................................ 9

Neal Conan, Lobbyists Offer Dictators a

Door to D.C., NPR (Jun. 19, 2007, 10:00

AM ET),

https://www.npr.org/transcripts/111882

18 ......................................................................... 18

Nellie Bly, Ten Days in a Mad-House

(1887),

https://digital.library.upenn.edu/women

/bly/madhouse/madhouse.html ........................ 7, 8

Old Hospital in Hyde Park is Now a

Memory, CBS News (Apr. 25, 2011, 1:54

PM),

https://www.cbsnews.com/chicago/news/

old-hospital-in-hyde-park-is-now-amemory/............................................................... 14

Rana Ayyub, An Appeal to the Supreme

Court After Its Haren Pandya

Judgment: Examine the “Gujarat Files”

tapes as Evidence”, Caravan Magazine

(Jul. 11, 2019),

https://caravanmagazine.in/law/appealsupreme-court-haren-pandya-examinegujarat-files-rana-ayyub-evidence ..................... 16

vi

Rob Crotty, Bring Your Big Stick to “The

Jungle,” National Archives (Sept. 20,

2010),

https://prologue.blogs.archives.gov/2010

/09/20/bring-your-big-stick-to-thejungle/ .................................................................. 10

The So-Called "Beveridge Amendment" to

the Agricultural Appropriation bill

(H.R. 18537): Hearings before the

Committee on Agriculture, 59th

Congress 261 (1906),

https://babel.hathitrust.org/cgi/pt?id=hv

d.hx7dvd&seq=9 ........................................... 10, 11

Unbreakable: The Rana Ayyub Story,

Rana Ayyub’s Newsletter (Rana Ayyub),

Sept. 5, 2022,

https://ranaayyub.substack.com/p/unbre

akable-the-rana-ayyub-story.............................. 15

1

INTERESTS OF AMICUS CURIAE1

Amicus Life Legal Defense Foundation (“Life

Legal”) is a California non-profit corporation that

provides legal assistance to pro-life advocates. Life

Legal is concerned about federal, state and local

governments’ abuse of their powers to silence the

speech of those with whom they disagree. With the

overturning of Roe v. Wade and the return of the

issue of abortion “to the people and their elected

representatives” (Dobbs v. Jackson Women’s Health

Org., 597 U.S. 215, 302 (2022)), the need to protect

the speech of pro-life citizens has taken center stage.

Life Legal supports preserving all avenues for

individuals to practice their constitutional right to

freedom of speech and of the press and opposes

limitations on those freedoms for the questionable

purpose of preserving the right to “conversational

privacy” at the expense of robust and truthful

reporting.

SUMMARY OF ARGUMENT

Or. Rev. Stat. § 165.540(1)(c) (“Statute”) is an

unconstitutional limitation on undercover reporters’

newsgathering activities. Undercover reporting has

existed for well over a century, providing vital

information that could not have been obtained

through traditional means. These news stories have

1 Pursuant to Rule 37, no counsel for any party authored this

brief in whole or in part; no party counsel or party made a

monetary contribution intended to fund its preparation or

submission; and no person other than amicus or its counsel

funded it. Counsel for all parties were notified more than ten

days prior to the filing of this brief.

2

exposed wrongdoing by powerful individuals in

business and government, heightened public

awareness of hidden corruption, held bad actors

accountable for their conduct, and spurred muchneeded reforms that may not have come about

otherwise. Whether a reporter uses a pencil and

paper, a computer, a camera, or a secret recording

device is immaterial to the level of First Amendment

protection afforded. First Amendment protections

extend to new as well as old media. Brown v. Ent.

Merchs. Ass’n, 564 U.S. 786 (2011) (holding that a

California law prohibiting the sale or rental of

violent video games to minors could not satisfy strict

scrutiny and therefore violated the First

Amendment). A brief history of undercover reporting

will illustrate the importance of this genre and the

need to maintain reporters’ access to all of the tools,

traditional as well as modern, that are necessary to

conduct their important work.

ARGUMENT

I.

Oregon’s

Statute

Unjustifiably

Handicaps Undercover Reporting.

By prohibiting recording of conversations in

any setting without all parties being “specifically

informed” of the recording, Oregon Rev. Stat. §

165.540(1)(c) (“Statute”) threatens to undermine

the

efficacy

of

investigative

journalism.

Undercover reporting frequently relies on

surreptitious recordings to corroborate its

potentially explosive findings.

For well over a hundred years, undercover

reporting has served a vital role in shaping public

3

opinion and bringing about much-needed reforms.

The note-taking of the past has its modern

equivalent in recordings. Both are types of speech

creation, which is entitled to First Amendment

protection. Brown, 564 U.S. at 792 n. 1 (“Whether

government regulation applies to creating,

distributing, or consuming speech makes no

difference.”); Sorrell v. IMS Health, 564 U.S. 552,

570 (2011) (“[T]he creation and dissemination of

information are speech within the meaning of the

First Amendment.”) Both modes of expression are

entitled to First Amendment protection, because

“whatever the challenges of applying the

Constitution to ever-advancing technology, ‘the

basic principles of freedom of speech and the press,

like the First Amendment's command, do not vary’

when a new and different medium for

communication appears.” Brown, 564 U.S. at 790. As

this Court has held, “In this Nation, every writer,

actor, or producer, no matter what medium of

expression he may use, should be freed from the

censor.” Superior Films, Inc. v. Dep't of Educ., 346

U.S. 587, 589 (1954) (Douglas, J., concurring)

(emphasis added) (reversing state bans on certain

motion pictures based on immoral content).

Yet, despite acknowledging the constitutional

protection afforded to audio recordings, to speech

creation, and to newsgathering (Pet. App.14a – 16a),

the lower court dismissed the necessity of secret

recordings in some contexts, citing several wellknown undercover reporters who did not record

(specifically, Nellie Bly, Gloria Steinem, and John

Howard Griffin) as proof of its conclusion. The court

also offered to the appellants, as a sort of consolation

prize, that they still have access to “all the

4

traditional tools of investigative reporting, including

talking with sources, reviewing records, taking

photographs, recording videos openly during public

and semi-public meetings and events, recording

videos that do not capture oral conversations,

recording conversations after announcing it is doing

so, and making use of Oregon's freedom-ofinformation laws.” Pet. App. 48a.

Because the First Amendment protects the

act of speech creation (Brown, Sorrell) as well as

various types of media (Brown, Superior Films, Pet.

App. 14a), it logically protects a reporter’s choice of

media in the act of creating speech. The reporter, not

the government, is in the best position to decide the

most effective method of pursuing and presenting a

particular story.

The Ninth Circuit panel’s catalog of

investigatory alternatives illustrates this fact. The

court failed to consider the reality that corrupt

individuals do not wish to be discovered and will

deny wrongdoing if they can. As author Brooke

Kroeger noted, “[U]ndercover reporting persists

because of ‘elementary facets of human nature,’ the

propensity of wrongdoers to avoid comment or lie

until confronted with specific evidence to the

contrary.”2 Indeed, stonewalling, concealment, and

prevarication were the reactions of the targets to the

revelations of Bly, one of the reporters in the court’s

list. See Sec. II.A, infra. In light of the human

tendency to avoid or shift responsibility, or even to

rewrite history in their own minds, undercover

Brooke Kroeger, Undercover Reporting: The Truth About

Deception, 256 (2012) (citing attorney John P. Borger),

https://library.oapen.org/bitstream/handle/20.500.12657/3139

1/1/628774.pdf.

2

5

reporters often choose to employ secret recordings as

an effective tool to expose corruption and prevent

targets from later denying their activities or words.

The First Amendment protects the reporters’ choice

of that method. Superior Films, 346 U.S. at 589. If

these reporters have to announce in advance that

they are recording, they will be unable to compile the

“specific evidence” necessary to decisively rebut the

defensive lie that is likely to come.

Furthermore, Oregon’s Statute has deprived

undercover journalists of their choice of using the

“medium of expression” (Id.) necessary to make their

reporting most effective. Sometimes, the proof of

wrongdoing resides not in what the targets are

apparently doing, but rather in what they verbally

admit is behind their facially ambiguous conduct. In

such cases, audio recording makes more certain and

compelling what the video appears to be revealing.

See, e.g., Biography of a Bookie Joint, Section II, D,

infra. Thus, taking video without audio is an

inadequate method of capturing and verifying the

wrongdoing.

Finally, the Statute is underinclusive if

conversational privacy is the goal, which “raises

serious doubts about whether the government is in

fact pursuing the interest it invokes, rather than

disfavoring a particular speaker or viewpoint.”

Brown, 564 U.S. at 802. See also Pet. for Writ of

Certiorari

(“Pet.

Cert”)

31-32

(discussing

underinclusiveness of Statute). Oregon does not

criminalize the unannounced taking of notes of a

conversation, even though publicly exposing

conversations based on note-taking could be as much

an intrusion into privacy as publishing a recording

6

of it. As previously stated, the main difference is

that, without a recording, the target has the

opportunity to falsely deny his statements. Oregon

has no valid interest in giving potentially corrupt

individuals the opportunity to lie about their

activities or statements. It is underinclusive to ban

only audio recordings, while allowing note-taking

and subsequent disclosure of private conversations,

since both are constitutionally protected media, even

if they both potentially intrude on “conversational

privacy.”

II.

Undercover

Journalism

Fills

a

Necessary Niche in the Field of News

Reporting, and the Ninth Circuit

Opinion Threatens to Undermine Its

Effectiveness.

A review of famous undercover journalists of

the past reveals how important this subset of

investigative journalism is to societal reform. They

lied about their identities, took careful notes on what

they saw and heard and, in modern times, recorded

audio and video of their targets’ activities and

statements. Powerful societal forces, to say nothing

about public apathy, were and continue to be

arrayed against them. Therefore, it is critical for

undercover journalists not to be stripped of one of

the most effective tools for proving their reporting

was truthful and accurate.

7

A.
Nellie Bly – Ten Days in a Madhouse

In 1887, Elizabeth Jane Cochrane Seaman

(aka “Nellie Bly”), a reporter for Joseph Pulitzer’s

New York World, assumed the pseudonym Nellie

Brown and feigned insanity before police, in court,

and in public medical examinations to gain

admission to the mental asylum Blackwell’s Island,

where she remained for ten days. The subsequent

publication in the newspaper of her exposé of the

horrible abuse and neglect of insane patients drew

outrage. A grand jury investigation resulted in

reforms at the asylum.3 Her report helped spawn the

age of undercover journalism.4

Nellie’s report included accounts of numerous

conversations with women at the temporary home

from which she was sent to court;5 with several

doctors who examined her;6 with other patients in

the asylum whom she named;7 and with staff at the

asylum, many of whom she also named. Most of

these identified staff treated her poorly and abused

her and others by giving them ice cold baths,

neglecting to give them warm clothing or adequate

food, and choking and beating them.8

Nellie Bly, Ten Days in a Mad-House (1887),

https://digital.library.upenn.edu/women/bly/madhouse/madho

use.html

4 Arlisha R. Norwood & Mariana Brandman, Nellie Bly,

National Women’s History Museum (last visited Apr. 18, 2025),

https://www.womenshistory.org/educationresources/biographies/nellie-bly-0.

5 Bly, supra note 3, at ch. III.

6 Id. at chs. V-VII, IX, XI.

7 Id. at chs. VI, VIII, X-XII.

8 Id. at chs. XI-XIV.

3

8

After the World reported the story of Bly’s

harrowing experiences, the institution attempted a

cover-up. When the grand jury visited Blackwell’s

Island, the inmates she had spoken of in her report,

with the exception of one, were nowhere to be found,

having been transferred elsewhere or discharged.

The dismal conditions she described in the kitchen,

the poor food quality, the lack of cleanliness and the

generally miserable conditions of the establishment

had all been amended for the grand jury’s visit.

Apparently, the asylum had been informed of the

visit before it occurred, and thus “[t]he institution

was on exhibition, and no fault could be found.”9

Some of the nurses contradicted her story in sworn

testimony. Bly lamented, “I hardly expected the

grand jury to sustain me, after they saw everything

different from what it had been while I was there.”

Indeed, had it not been for the testimony of one

inmate, who corroborated Bly’s story, the grand jury

would likely not have believed her.10

Bly’s words underscore the impact that secret

recording can have on the success of an undercover

assignment. Had that inmate not been there, Bly

might not have been believed, and the reforms would

not have occurred. The abuse and neglect would

have continued.

B.
Upton Sinclair – The Jungle

In 1904, at the behest of the socialist weekly

Appeal to Reason, Upton Sinclair went undercover

for seven weeks to investigate Chicago’s

9 Bly, ch. XVII.

10 Id.

9

meatpacking industry. He interviewed various

individuals connected with the industry, including

health

inspectors

and

workers

in

the

slaughterhouses. These workers smuggled him in so

that he could see firsthand the conditions in which

they worked. Sinclair’s fictional novel The Jungle

was published in 1906 and described the unsanitary

and harmful conditions he had personally observed

in the meat-packing plants. As a result, Congress

passed the Pure Food and Drug Act and Meat

Inspection Act of 1906.11 This influential work is

considered ground-breaking for having opened the

eyes of the public and government to the need for

better oversight of the food industry. Although

critics in his time disparaged Sinclair’s work, he was

in fact a pioneer in the newly-emerging field of

journalists exposing corruption in government and

business.12

The popular account of Sinclair’s exploit and

the resulting legislation generally does not mention

that his claims were not initially believed by

government officials. An investigation by the

Bureau of Animal Industry, part of the U.S.

Department of Agriculture, reported, “The Jungle

was mostly lies and exaggerations.”13 Furthermore,

President Theodore Roosevelt did not think highly of

11 James Diedrick, The Jungle, The Encyclopedia of Chicago,

(2005),

http://www.encyclopedia.chicagohistory.org/pages/679.html.

12

Muckraker Journalism, Encyclopedia Britanica (last

updated

Feb.

10,

2025),

https://www.britannica.com/topic/muckraker.

13 Jesse Greenspan, 7 Things You May Not Know About ‘The

Jungle’,

History

(last

updated

Feb.

17,

2025),

https://www.history.com/articles/7-things-you-may-not-knowabout-the-jungle.

10

the so-called “muckrakers,”14 and he considered

Sinclair to be a “crackpot.”15 He stated: “I have an

utter contempt for him [Sinclair]. He is hysterical,

unbalanced, and untruthful. Three-fourths of the

things he said were absolute falsehoods.”16

Nevertheless, because Roosevelt distrusted

the close ties between the Department of Agriculture

and the meat-packing industry, he sent Labor

Commissioner Charles P. Neill and social worker

James B. Reynolds to conduct an independent

investigation.17 Their report confirmed Sinclair’s

account of conditions. Even so, when the House

Committee on Agriculture heard testimony from the

two men, Committee members were skeptical and

challenged the details of the investigators’ report.18

Unsurprisingly,

the

meatpacking

industry

representative denied the allegations in the Neill

14 Muckraker Journalism, supra note 12.

15 Rob Crotty, Bring Your Big Stick to “The Jungle,” National

Archives

(Sept.

20,

2010),

https://prologue.blogs.archives.gov/2010/09/20/bring-your-bigstick-to-the-jungle/.

16 Lawrence W. Reed, Of Meat and Myth, Mackinac Center for

Public Policy (Feb. 13, 2002), https://www.mackinac.org/4084.

17 The So-Called "Beveridge Amendment" to the Agricultural

Appropriation bill (H.R. 18537): Hearings before the Committee

on Agriculture, 59th Congress 261 (1906)

(message of the President of the United States, transmitting

the Report of Mr. James Bronson Reynolds and Commissioner

Charles P. Neill) (“I deemed it best to have a further immediate

investigation by men not connected with the Bureau. . . . It was

impossible under the existing law that satisfactory work

should be done by the Bureau of Animal Industry.”),

https://babel.hathitrust.org/cgi/pt?id=hvd.hx7dvd&seq=9.

18 David Moss & Marc Campasano, The Jungle and the Debate

over Federal Meat Inspection in 1906, Harvard Business School

(last

updated

Oct.

2017),

https://www.hbs.edu/faculty/Pages/item.aspx?num=50388.

11

Reynolds report as “unjust and unfair” and asserted

that their business was “conducted in an extremely

sanitary, healthful, and cleanly manner.”19

Notwithstanding the success of the drive for

more federal oversight, even today there are those

who consider Sinclair’s story to have been an anticapitalist myth, that Neill and Reynolds’ report was

carelessly written with a pre-determined outcome

while the Department of Agriculture’s report was

the final word.20

This history indicates not only the power of

undercover reporting, but also the tenuousness of its

success. It was only because of a few honest (we

think) men, and the public outcry, that the federal

acts were passed. Had these circumstances not

existed, The Jungle may very well have been

dismissed as pure fiction.21 If Sinclair had had the

additional tool of a recording device to confirm his

interviews and observations, then there would have

been little debate over the veracity, or not, of his

claims.

C.
Jay McMullen/CBS – Biography of a

Bookie Joint

Jay McMullen was one of the first reporters to

produce undercover television documentaries using

hidden audio and visual recordings. In 1961, he went

undercover in an illegal bookie joint run out of a key

shop in Boston. He concealed hidden cameras and

microphones in a lunch box and documented police

19 Hearings Before the Committee on Agriculture 5-6 (statement

of Mr. Thomas E. Wilson, of Chicago, Ill.), supra note 17.

20 Reed, supra note 16.

21 Id.

12

entering and leaving the shop while betting was

taking place. They ignored a small stove where

bookies burned betting slips.22

CBS traced complaints against the shop that

were squelched by Boston police and forwarded the

information gathered to the United States

Department of Justice. The DOJ’s investigation

corroborated by McMullen’s audio and video

recordings, established that police had been taking

payoffs from the bookies, and a crackdown on illegal

gambling followed. Author Greg Vitiello noted, “The

episode served as an impressive reminder of the

press’ power to act as advocates for the law.“23 As a

result of the airing of the show on CBS, high-ranking

Boston police officers were demoted and the police

commissioner resigned.24

McMullen’s recordings were invaluable in

corroborating that the officers seen in the footage

were really police and not actors and that the footage

was not stock.25 And certainly the audio made clear

that the officers were not at the bookie joint to

conduct official police business. Reflecting on the

work that he did, McMullen stated that he preferred

to sit down and talk things over with people, but

22 Kroeger, supra note 2, at 243.

23 Greg Vitiello, Where are the Documentaries of Yesteryear?,

36

Television

Q.

7-8

(2006),

https://www.worldradiohistory.com/Archive-TelevisionQuarterly/TVQ-2006-Spring-Summer.pdf.

24 CBS News Producer Jay McMullen, Early Hidden-Camera

User Who Pioneered Investigative Television Journalism, Is

Dead at 90, Paramount Press Express (3/10/2012),

https://www.paramountpressexpress.com/cbs-news-andstations/releases/?view=30985.

25 Kroeger, supra note 2, at 243.

13

there was no way to do that with this kind of story.26

The complicity of the police and the covert nature of

the illegal gambling operation would have made it

very difficult, if not impossible, to obtain candid

responses using overt traditional reporting

techniques.

D.
ABC’s Primetime Live – the Desnick

Eye Center

Seven Primetime Live reporters went

undercover in 1993 posing as patients for an

ophthalmologist in order to confirm reports that he

performed unnecessary cataract surgeries on elderly

patients in order to receive Medicare payments. The

undercover “patients” made surreptitious video and

audio recordings of their visits, recording the

conversations they had with eye doctors at the

Center. The two testers who were under sixty-five

were told they did not need cataract surgery. Four of

the five who were over sixty-five and covered by

Medicare were told they needed cataract surgery. A

professor of ophthalmology consulted by Primetime

said none of the four needed cataract surgery and

dismissed the possibility that there could be an

honest difference of opinion on this question. The

Primetime Live episode detailing the apparent

fraudulent practices was aired in June 1993. J.H.

Desnick v. Am. Broad. Cos., 44 F.3d 1345, 1348 (

Cir. 1995) (affirming dismissal of plaintiff clinic’s

claims of trespass, fraud, infringement of privacy

and illegal wiretapping but reversing dismissal of

26 Id. at 244.

14

defamation claim and remanding for further factual

development).

Subsequently, Desnick and thirty other

Illinois ophthalmologists who worked for him were

named in a class action lawsuit charging them with

performing unnecessary cataract surgeries and

fraudulent advertising.27 Desnick later sold the

Center while under federal investigation.28

A video recording, without audio proving that

the tester patients had been told they needed

cataract surgery, would have given the Center and

its doctors the ability to deny the allegedly wrong

diagnoses. They could have falsified medical records

to cover themselves. It would have been the doctors’

word against that of the reporters. This case

exemplifies the value of audio recordings to

corroborate a reporter’s story in a situation where

physical evidence may not be available or is subject

to falsification.

E.
Rana Ayyub – Gujarat Files

In 2010, Rana Ayyub, a reporter for

investigative magazine Tehelka, went undercover

for eight months in Gujarat, India, to investigate the

role of the local government in the 2002 Gujarat

anti-Muslim riots which resulted in the deaths of

Lisa Green, Desnick Clinics Named in Lawsuit, Rockford

Register

Star,

Sep.

20,

1996,

at

1E,

https://www.molllawgroup.com/files/desnick_clinics_named_in

_lawsuit.pdf.

28 Old Hospital in Hyde Park is Now a Memory, CBS News

(Apr.

25,

2011,

1:54

PM),

https://www.cbsnews.com/chicago/news/old-hospital-in-hydepark-is-now-a-memory/.

27

15

790 Muslims and 254 Hindus.29 Her final report

implicated the role of Narendra Modi’s government

in a series of murders committed to create an image

of Modi as a brave Hindu leader being attacked by

Muslim extremists. Modi, now Prime Minister of

India, was chief minister of Gujarat at the time.30

Assuming the identity of a young American

woman of Hindu descent, Ayyub covered her body

with cameras and recording devices and began

mixing with socialites in Gujarat. She eventually

gained access to high government officials, including

Modi. Her book, Gujarat Files: Anatomy of a Cover

Up, includes transcripts of conversations with Modi

himself, as well as other high-ranking Gujarat

officials. Some of these conversations included

admissions implicating the officials in anti-Muslim

violence in Gujarat.31

In particular, the book detailed a conversation

with a police officer who was investigating the

murder of the Home Minister of Gujarat until his

death in 2003. The officer indicated that Modi was

behind the murder while confessions from some

Muslim men had been procured by torture. The

convictions of these 12 Muslim men were overturned

by a lower court, but then reinstated by the Supreme

Court of India, which was openly dismissive of

Ayyub’s book. Ayyub appealed to the Court to review

29 Unbreakable: The Rana Ayyub Story, Rana Ayyub’s

Newsletter

(Rana

Ayyub),

Sept.

5,

2022,

https://ranaayyub.substack.com/p/unbreakable-the-ranaayyub-story.

30 An Exclusive Excerpt from My Undercover Investigation,

‘Gujarat Files, ’ Rana Ayyub’s Newsletter (Rana Ayyub), Mar.

26, 2022), https://ranaayyub.substack.com/p/gujarat-filesexcerpt-rana-ayyub-modi.

31 Unbreakable, supra note 29.

16

the tapes from her investigation, which included

much evidence indicating that the twelve

individuals were not responsible. The Court never

took up her offer.32

Undoubtedly because of the existence of the

tapes, none of the officials mentioned in the book

denied making the statements or sued her for

defamation.33 Yet Modi, who has served as Prime

Minister since 2014, has never been formally

charged with wrongdoing. Ayyub, however, has been

subjected to a campaign of intimidation by Indian

authorities, from the police to the tax department.34

The end of Rana Ayyub’s story has not yet

been told, but the tapes, still in her possession, stand

as an indictment against a corrupt government and

a servile Indian mainstream media too afraid to

stand up to power.

F.
Ken Silverstein

Washington

–

Their

Men

in

In 2007, Ken Silverstein, a contributing editor

for Harper’s Magazine, wanted to

investigate

lobbyists in Washington, D.C. to determine whether

a prominent Washington lobbying firm would be

unethical enough to represent a foreign regime

32 Rana Ayyub, An Appeal to the Supreme Court After Its Haren

Pandya Judgment: Examine the “Gujarat Files” tapes as

Evidence”,

Caravan

Magazine

(Jul.

11,

2019),

https://caravanmagazine.in/law/appeal-supreme-court-harenpandya-examine-gujarat-files-rana-ayyub-evidence.

33 Id.

34 Billy Perrigo ‘While I’m Alive, I’ll Keep Speaking.’ Journalist

Rana Ayyub’s Fight to Expose the Truth in India, Time (Oct.

22, 2021, 5:52 AM EDT), https://time.com/6108251/ranaayyub-india-journalism-modi/

17

involved in human rights abuses.35 He assumed a

fake identity as the representative of a natural gas

broker and chose Turkmenistan as the rogue regime

he would ostensibly be representing. Silverstein hid

a tape recorder in the inside pocket of his suit both

to document the conversations he would be having

and to have a contemporaneous account so that he

would not have to rely solely on memory or notes to

write or corroborate his reporting. So equipped, he

set off to introduce himself to D.C. lobbying firms.

The result was “Their Men in Washington:

Undercover with D.C.’s Lobbyists for Hire,”

published in Harper’s July 2007 issue.36

The natural gas trade from Turkmenistan

was notoriously corrupt and included exporting

money offshore for Turkmen authorities by

organizations like Silverstein’s fictitious Maldon

Group. Turkmenistan itself is a Stalinist-type

dictatorship known for human rights abuses.

Despite these red flags, two D.C. lobbying firms

agreed to represent Silverstein’s interests. They

offered to conduct media campaigns, which would

include writing op-eds, finding respectable

signatories from think tanks or academia or even the

government, and planting them in newspapers. To

evade federal laws, they would utilize a third party,

such as a Turkmen university, to sponsor a visit by

a congressional delegation and set up events to

bolster the image of Turkmenistan and the natural

gas trade to the members of Congress. It would

appear to be an independent event, but it would be

35 Kroeger, supra note 2, at 283.

36 https://www.thefreelibrary.com/Their+men+in

+Washington%3a+undercover+with+D.C.%27s+lobbyists+for

+hire.-a0166002108.

18

entirely staged to present the Group’s point of

view.37

When asked if he could have documented his

findings using traditional journalistic means,

Silverstein responded, “Absolutely not. There is no

way. These firms will tell you that they're all on the

up and up and they're transparent and they don't do

anything duplicitous.”38

While the piece did not result in any specific

legislative reforms, it did much to heighten public

awareness of the influence and operations of

lobbying firms in D.C. In any case, since the

newsworthiness of the story was in what was said,

rather than in anything that was done, it is clear

that the option of taking photography or video

without sound would have been wholly inadequate

as a newsgathering tool. And the fact that

Silverstein had recordings to back up his reporting

left the lobbying firms without any ability to flatly

deny anything that was said. They could only try to

provide ‘clarification’ for their statements.39

G.
James O’Keefe and Hanna Giles –

ACORN Sting

In 2009, independent reporters James

O’Keefe and Hannah Giles, posing as a pimp and a

prostitute, visited several offices of the publicly

funded Association of Community Organizations for

Reform Now (“ACORN”) seeking help in

37 Id.

38 Neal Conan, Lobbyists Offer Dictators a Door to D.C., NPR

(Jun.

19,

2007,

10:00

AM

ET),

https://www.npr.org/transcripts/11188218.

39 Id.

19

establishing a house of prostitution, which would

include girls as young as thirteen from El Salvador.

The resulting audiovisual recordings captured

several employees urging Giles to claim that she

worked as a “freelancer,” “performance artist” or

“entertainer” rather than as a prostitute. In

addition, employees showed her how to claim the

underage girls as dependents on her tax return and

how best to smuggle them across the U.S.-Mexico

border.40

When the videos were aired,

Congress

quickly voted to defund ACORN, and the Census

Bureau and the Internal Revenue Service cut ties

with them. ACORN attempted to quell the resulting

outcry by firing the featured employees, ordering

organization-wide training, suspending its housing

assistance programs, and engaging an independent

auditor. In retaliation, it sued O’Keefe, Giles, and

Andrew Breitbart, who had published the videos on

the site biggovernment.com, using a Maryland law

that required consent in order to create sound

recordings.41 But the power of the audiovisual

recordings proved too great for ACORN to salvage

its reputation, and it later filed for bankruptcy.42

O’Keefe and Giles were unknowns and were

operating outside of the mainstream media, so they

could not rely on either their own or a media outlet’s

reputation to gain public confidence. Indeed, the

outrageous statements made by the ACORN

40 Justin Pritchard, How the ACORN ‘Pimp and Hooker’ Videos

Came to Be, Seattle Times (last updated Sept. 23, 2009, 10:31

PM),

https://www.seattletimes.com/nation-world/how-theacorn-pimp-and-hooker-videos-came-to-be/.

41 Id.

42 Kroeger, supra note 2, at 250.

20

employees could very easily have been dismissed as

fabrications by politically motivated operatives -had it not been for the audiovisual recordings. This

contemporaneous evidence made the story

undeniable and rightly resulted in the backlash

against ACORN.

III.

Audio Recordings Can Provide Vital

Corroboration of Explosive Claims of

Corruption.

The Ninth Circuit’s statement that hidden

recordings are not “’indispensable tools’ of

newsgathering” and that the remaining alternatives

to hidden recordings “satisfy the alternative

channels requirement” (Pet. App. 48a-49a) does not

stand up to scrutiny in light of this history. Not only

are surreptitious audio recordings worthy of the

same constitutional protection as other methods of

documenting a news story, but they also could make

the difference between a story lost to history and one

that changes the course of history. Nellie Bly and

Upton Sinclair were almost disbelieved, and their

stories survived because of fortuitous events.

McMullen’s real-time audiovisual recordings of

police corruption and illegal gambling effectively

brought down the collusion which allowed those

establishments to operate. The Desnick Eye Center

closed in the wake of Primetime Live’s reporting.

Rana Ayyub may still be alive only because of the

international recognition she has earned, partly

because she has the hard evidence to back up her

earthshaking claims. Because of that evidence, there

is still hope that wrongdoers will one day be brought

to justice. Ken Silverstein closed the mouths of

21

lobbyists, no small feat, in their ability to flatly deny

their unethical behavior. And James O’Keefe and

Hanna Giles, unknown to the public before their

ACORN sting, would likely have been dismissed out

of hand with their outrageous-sounding accusations

had it not been for the proof of the audiovisual

recordings.

As Kroeger notes, “Like almost no other

journalistic approach, undercover reporting has a

built-in ability to expose wrongs and wrongdoers or

perform other meaningful public service. It can

illuminate the unknown, it can capture and sustain

attention, it can shock or amaze.”43 Real-time

recordings of bad actors admitting to their bad

actions heightens undercover reporting’s “narrative

dimension. . . that generates . . . an overspill of

visceral outrage.”44 It is indeed “visceral outrage”

that this Court has recognized as a legitimate

response to First Amendment activity, and a reason

for its protection: “It [free speech] may indeed best

serve its high purpose when it . . . even stirs people

to anger. . . . That is why freedom of speech, though

not absolute . . . is nevertheless protected against

censorship or punishment.” Terminiello v. Chicago,

337 U.S. 1, 4 (1949) (emphasis added) (reversing a

conviction for disorderly conduct when defendant’s

speech was met by an angry and turbulent crowd of

protesters). Unannounced audio recording is a

critical tool that helps fulfill the media’s purpose in

holding corrupt, powerful individuals accountable

for their actions.

43 Id. at Preface xv.

44 Id. at 174.

22

Oregon’s Statute removes a dynamic and

indispensable element of undercover reporting, the

element that could incite “visceral outrage” and spur

the public and government officials to action.

CONCLUSION

Undercover reporting provides evidence of

corruption and abuse in situations where victims or

witnesses either would not be believed or are

incapable or unwilling to speak out because of fears

of retaliation. Audio recording gives voice to these

silent victims, renders undeniable the damaging

self-incriminating statements caught on tape, and

provides a powerful corroboration of what might

otherwise be an unbelievable revelation of

wrongdoing.

For the foregoing reasons, amicus Life Legal

urges the Court to grant the Petition.

Respectfully submitted,

CATHERINE SHORT

Counsel of Record

SHEILA A. GREEN

LIFE LEGAL DEFENSE FOUNDATION

PO Box 2105

Napa, CA 94558

(707) 224-6675

kshort@lldf.org

Counsel for Amicus Curiae