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

Supreme Court briefMay 22, 2025

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No. 24-1061

In The

Supreme Court of the United States

PROJECT VERITAS, ET AL.

Petitioners,

NATHAN VASQUEZ, IN HIS OFFICIAL CAPACITY AS

MULTNOMAH COUNTY DISTRICT ATTORNEY, ET AL.

Respondents.

On Petition for Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

BRIEF OF AMICI CURIAE THE CENTER FOR

MEDICAL PROGRESS AND DAVID DALEIDEN

IN SUPPORT OF PETITIONERS

MARK P. MEUSER

Counsel of Record

KRISTA L. BAUGHMAN

KARIN M. SWEIGART

DHILLON LAW GROUP, INC.

177 Post Street, Suite 700

San Francisco, CA 94108

(415) 433-1700

mmeuser@dhillonlaw.com

Counsel for Amici Curiae

TABLE OF CONTENTS

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

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

INTEREST OF AMICI CURIAE ........................... 1

SUMMARY OF ARGUMENT ................................ 2

ARGUMENT ............................................................ 3

Oregon’s Two-Party Consent Law

Unconstitutionally Restricts

Undercover Journalism ............................. 3

Amici’s Undercover Journalism and

Its Impact .................................................... 3

Political Opponents Retaliate to

Censor Speech. ............................................ 5

Need for First Amendment Clarity ............ 7

II. The First Amendment’s History

Demands Broad Protections for

Newsgathering. .......................................... 10

The Framers’ Intent to Reject

Censorship ................................................ 10

Rejection of Prior Restraints .................... 12

Newsgathering Must be Protected

as Integral to Press Freedom. .................. 13

CONCLUSION ....................................................... 14

TABLE OF AUTHORITIES

CASES

Page

Animal Legal Def. Fund v. Wasden,

878 F.3d 1184 (9th Cir. 2018) ............................. 16

Arcara v. Cloud Books, Inc.,

478 U.S. 697 (1986) ............................................... 9

Branzburg v. Hayes,

408 U.S. 665 (1972)., 27 Cal. 4th 766 (2002) . 8, 15

Bridges v. California,

314 U.S. 252 (1941) ............................................. 11

Cohen v. Cowles Media Co.,

501 U.S. 663 (1991) ............................................. 16

Consolidated Edison Co. of New York, Inc. v. Public

Serv. Comm’n of New York,

447 U.S. 530 (1980) ............................................... 9

Grosjean v. Am. Press Co.,

297 U.S. 233 (1936) ............................................. 13

Houchins v. KQED, Inc.,

438 U.S. 1 (1978) ................................................. 15

McConnell v. Federal Election Com’n,

540 U.S. 93 .......................................................... 12

Near v. Minnesota,

283 U.S. 697 (1931) ....................................... 11, 14

New York State Rifle & Pistol Ass’n v. Bruen,

597 U.S. 1 (2022) ................................................. 10

New York Times Co. v. Sullivan,

376 U.S. 254 (1964) ............................................. 13

New York Times Co. v. United States,

403 U.S. 713 (1971) ......................................... 5, 12

Organization for a Better Austin v. Keefe,

402 U.S. 415 (1971) ....................................... 14, 15

TikTok Inc. v. Garland,

145 S. Ct. 57 (2025) ........................................... 7, 8

iii

Turner Broadcasting System, Inc. v. FCC,

512 U.S. 622 (1994) ............................................... 8

United States v. Stevens,

559 U.S. 460 (2010) ............................................. 16

Statutes

Sedition Act of 1798, ch. 74, 1 Stat. 596 (expired

1801) ..................................................................... 11

Other Authorities

Letter to James Currie (Jan. 28, 1786), in Papers of

Thomas Jefferson, Vol. 9, p. 239 (Julian P. Boyd

ed., 1954) .............................................................. 10

Report on the Virginia Resolutions, in 4 Madison’s

Works 543 (1800) ................................................. 10

INTEREST OF AMICI CURIAE1

Amici Curiae are The Center for Medical

Progress, Inc. (“CMP”), a 501(c)(3) non-profit

dedicated to investigative journalism on bioethical

issues, and David Daleiden, its founder and

president. In 2015, CMP and Daleiden released

undercover videos exposing illegal fetal tissue

trafficking by Planned Parenthood and its partners,

prompting congressional investigations, a $7.8

million settlement against related companies, and

nationwide debate regarding practices in the

harvesting and sale of aborted fetal body parts at

abortion clinics across the country. The investigation

also revealed violations of medical standards and

ethics at Planned Parenthood Gulf Coast in Texas,

which the Fifth Circuit noted was willing to perform

illegal partial-birth abortions to sell fetal body parts.

Amici’s work prompted regulatory reforms and

heightened public scrutiny of government-funded

research on aborted human fetuses.

Daleiden

faced

unprecedented

criminal

prosecution under California Penal Code § 632, a law

similar to the one at issue here, for his recordings in

public settings. Prosecutors’ narrow construction of

the term “public” setting to punish Daleiden for his

reporting illustrates the chilling effect that two-party

consent laws like Oregon’s ORS § 165.540 have on

citizens gathering the news. Amici have a direct

interest in ensuring that journalists can engage in

1 No counsel for any party authored any part of this brief, and

no person or entity other than amicus funded its preparation or

submission. All parties received timely notice of amicus’ intent

to file this brief

undercover reporting without fear of selective

prosecution, and the outcome of this case will shape

the

First

Amendment’s

protections

for

newsgathering nationwide.

SUMMARY OF ARGUMENT

The First Amendment’s history and text demand

robust protections for newsgathering, including

undercover video journalism, as a vital means of

exposing truth and informing public discourse. The

Framers, reacting to colonial censorship, crafted the

First Amendment to reject prior restraints and

ensure protections for the press enjoy the broadest

possible scope. This Court has consistently upheld

these principles, recognizing that newsgathering is

integral to press freedom.

Oregon’s two-party consent law, ORS § 165.540,

unconstitutionally restricts undercover journalism

by criminalizing recordings in public settings where

there is no reasonable expectation of privacy. Amici’s

experience—facing selective prosecution under a

similar California law for exposing fetal tissue

trafficking—demonstrates the chilling effect of such

statutes. The law’s wording risks content-based

application and empowers rogue actors to prosecute

based on their personal political biases. The Court

need look no further than Daleiden’s prosecution for

the “shocking” content of his undercover videos to see

a real-world example of this danger. Certiorari is

warranted to clarify that the First Amendment

protects undercover recordings of matters of public

interest in public places, resolving lower court

inconsistencies and safeguarding investigative

journalism.

ARGUMENT

Oregon’s Two-Party Consent Law

Unconstitutionally Restricts

Undercover Journalism

The First Amendment’s guarantee of free press is

a cornerstone of democratic accountability, ensuring

that journalists can investigate and expose matters

of public concern without fear of governmental

retribution. Undercover video journalism, such as

that pursued by both Appellant Project Veritas and

amici David Daleiden and the Center for Medical

Progress (CMP), plays a vital role in uncovering

hidden truths that might otherwise remain

concealed.

Oregon’s ORS § 165.540, which prohibits

recording conversations without all-party consent,

imposes an unconstitutional prior restraint on

undercover journalism. Amici’s experience under a

similar California law illustrates the law’s chilling

effect and the urgent need for First Amendment

clarity.

A. Amici’s Undercover Journalism and Its

Impact

David Daleiden and CMP’s undercover video

journalism exposed significant ethical and legal

concerns within the abortion industry, sparking

widespread

public

debate

and

prompting

governmental action. From 2013 to 2015, Daleiden

and CMP conducted a 30-month investigation, called

the “Human Capital Project,” to document the

procurement, transfer, and sale of aborted fetal

tissue by major abortion providers. These

investigations involved major abortion industry

representatives like Planned Parenthood Federation

of America (“PPFA”), its affiliates, and related

organizations. Using the established journalistic

technique

undercover

recording,

CMP

investigators posed as “secret shoppers” for a

fictitious tissue procurement company, BioMax

Procurement Services, LLC, to engage in

conversations with industry leaders at public venues

such as trade shows and restaurants.

The resulting videos captured admissions from

abortion industry officials, including discussions of

per-specimen payments for fetal tissue, altering

abortion procedures to obtain intact fetuses, and

practices potentially violating federal and state laws,

such as partial-birth abortion bans. For example, one

Planned Parenthood official described using

ultrasound to flip the fetus to a “breech” or feet first

position so that “there’s dilation that happens as the

case goes on” in order to harvest an “intact

calvarium” or fetal head, while another joked about

using a “less crunchy technique” to sell more intact

fetal specimens because “I want a Lamborghini.”

These revelations, published starting July 14, 2015,

prompted immediate and significant responses:

•

Congressional Investigations: The U.S.

House of Representatives and Senate

launched

comprehensive

investigations,

reviewing tens of thousands of documents and

issuing dozens of criminal and regulatory

referrals for PPFA and its partners. The House

Select Investigative Panel and Senate

Judiciary Committee concluded that Planned

Parenthood had committed systemic legal

violations, and credited CMP’s videos as the

catalyst for their inquiries.

•

State Legal Action: In October 2016, the

Orange County District Attorney initiated a

civil prosecution against DV Biologics and

DaVinci Biosciences for illegally selling fetal

tissue obtained from Planned Parenthood,

resulting in a $7.8 million settlement. The

Orange County DA credited CMP’s journalism

for prompting the case.

•

Public Discourse: CMP’s videos ignited a

robust public debate on the ethics of fetal

tissue procurement, bringing transparency to

an otherwise opaque industry and informing

citizens about practices affecting public policy

and medical ethics.

These outcomes demonstrate the profound public

interest served by Daleiden and CMP’s journalism.

By exposing potential illegalities and ethical lapses,

their work fulfilled the First Amendment’s core

purpose: enabling the press to “bare the secrets” of

powerful institutions and inform the public. New

York Times Co. v. United States, 403 U.S. 713, 717

(1971) (Black, J., concurring).

B. Political Opponents Retaliate to Censor

Speech.

The prosecution of Daleiden under California

Penal Code § 632—the first and only criminal

prosecution of a journalist under this statute—

illustrates the grave threat posed by vague and

ambiguous recording laws that enable creative

prosecutors to weaponize the powers of their offices

to circumvent First Amendment protections offered

to undercover journalists. Section 632 criminalizes

recording “confidential communications” without the

consent of all parties, but its application to public

settings, as in Daleiden’s case, creates a chilling

effect on investigative reporting. Daleiden was

prosecuted for capturing conversations in public

places, such as crowded restaurants and trade shows,

where third parties could overhear. As admitted by

the California Attorney General, Daleiden was

targeted for prosecution because his recordings were

“edited to enhance their shock value” and published

online. In short, Daleiden was targeted for

prosecution because his political opponents did not

like the content of the newsworthy footage he

gathered.

California’s selective enforcement of § 632 against

politically disfavored speech shows the danger of

these types of restrictions on traditional

newsgathering activities. In the years surrounding

Daleiden’s prosecution, outlets like NBC4 Los

Angeles, PETA, and CBS Los Angeles conducted

investigations in the State by way of undercover

video recordings yet faced no prosecution for their

similar recording activity. For instance, NBC4

reporters recorded janitors falsifying safety records

in 2008, and PETA investigators recorded animal

neglect in 2012, both without consent and in settings

where conversations were not necessarily private.

Despite this, California took no action. This disparity

suggests that Daleiden was targeted for the

controversial nature of his findings, not the act of

recording itself.

The prosecution’s impact on Daleiden and CMP

has been profound. Facing 15 criminal counts over

nearly 10 years, a home raid, and years of litigation,

Daleiden ultimately entered a no-contest plea

agreement to a single count in January 2025 to

dismiss the case, agreeing to a one-year diversionary

period during which he cannot make recordings

violating § 632. Since 2015, CMP has refrained from

further undercover recordings in California,

uncertain of the law’s scope and fearing additional

prosecution. This chilling effect not only silences

Daleiden and CMP but also deters other journalists

from

pursuing

undercover

investigations,

particularly on controversial topics, undermining the

public’s right to know.

Oregon’s ORS § 165.540 poses a similar threat,

criminalizing recordings in public settings where no

reasonable expectation of privacy exists. This chills

journalism on controversial topics, as journalists fear

prosecution based on the impact of their truthful

reporting. See TikTok Inc. v. Garland, 145 S. Ct. 57,

67 (2025).

C. Need for First Amendment Clarity

Clear First Amendment protections are essential

to ensure that undercover video journalism can

continue without the threat of selective prosecution.

The Supreme Court has long recognized that

“without some protection for seeking out the news,

freedom of the press could be eviscerated.” Branzburg

v. Hayes, 408 U.S. 665, 681 (1972).

This Court should grant certiorari to clarify that

the First Amendment protects undercover video

journalism conducted in public places or places of

public accommodation where there is no reasonable

expectation of privacy. Such clarity is critical for

several reasons:

•

Ceasing Content-Based Discrimination:

The prosecution of Daleiden demonstrates how

laws like Oregon’s speech restrictions can be

weaponized to target journalists based on the

content of their reporting. Clear First

Amendment

guidance

that

protects

undercover reporting would help ensure that

laws are applied neutrally, preventing

viewpoint-driven enforcement. TikTok Inc. v.

Garland, 604 U.S. __, 145 S.Ct. 57, 67 (2025)

(“Government action that suppresses speech

because of its message ‘contravenes [essential

First Amendment rights].”) (quoting Turner

Broadcasting System, Inc. v. FCC, 512 U.S.

622, 641 (1994)).

•

Preserving Investigative Journalism:

Undercover journalism has a storied history of

exposing wrongdoing, from Upton Sinclair’s

The Jungle to modern exposés on workplace

safety

and

animal

welfare.

Without

constitutional safeguards, some journalists

continue to avoid (and other journalists are

likely to avoid) such investigations, depriving

the public of critical information. Id. at 66

(recognizing the First Amendment triggers

review of challenged government actions when

they don’t directly regulate expressive conduct

but “impose a disproportionate burden upon

those engaged in protected First Amendment

activities.”) (quoting Arcara v. Cloud Books,

Inc., 478 U.S. 697, 703–704 (1986).

•

Informing Public Discourse: Daleiden and

CMP’s work sparked national investigations

and informed public policy debates on fetal

tissue

procurement.

Suppressing

such

journalism limits the marketplace of ideas,

undermining the First Amendment’s role in

fostering

informed

self-governance.

Consolidated Edison Co. of New York, Inc. v.

Public Serv. Comm’n of New York, 447 U.S.

530 (1980) (“Freedom of speech is

indispensable to the discovery and spread of

political truth and the best test of truth is the

power of thought to get itself accepted in the

competition of the market.”) (cleaned up).

The First Amendment must protect undercover

video journalism like that of amici, which exposed

critical issues of public concern and prompted

significant governmental and societal responses. The

chilling effect of speech restrictions in places like

California and Oregon threatens the vitality of

investigative journalism and the public’s right to

know. This Court should grant certiorari to provide

clear First Amendment protections for recording

matters of public interest in public settings, ensuring

that journalists can continue to uncover truth

without fear of selective prosecution. Such clarity is

essential to uphold the press’s role as a guardian of

democracy and to prevent the abuse of selective

prosecution to silence disfavored voices.

II.

The First Amendment’s History

Demands Broad Protections for

Newsgathering.

The First Amendment’s guarantee of press

freedom, rooted in the Framers’ rejection of

censorship, requires expansive protections for

newsgathering. This Court’s historical analysis, as in

New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S.

1, 25 (2022), confirms that constitutional protections

must align with their historical scope.

A. The Framers’ Intent to Reject Censorship

“The only conclusion supported by history is that

the unqualified prohibitions laid down by the framers

were intended to give to liberty of the press, as to the

other liberties, the broadest scope that could be

countenanced in an orderly society.” Bridges v.

California, 314 U.S. 252, 265 (1941). James Madison

emphasized that, unlike what they faced with

Britain, press freedom must be exempt from both

executive and legislative restraints. Near v.

Minnesota, 283 U.S. 697, 714 (1931) (quoting Report

on the Virginia Resolutions, in 4 Madison’s Works

543 (1800)). Thomas Jefferson similarly declared,

“our liberty depends on the freedom of the press, and

that cannot be limited without being lost.” Letter to

James Currie (Jan. 28, 1786), in Papers of Thomas

Jefferson, Vol. 9, p. 239 (Julian P. Boyd ed., 1954).

This expansive view underscores that the press’s

ability to gather and disseminate information

without fear of suppression is central to its

constitutional

role.

The

Framers’

negative

interaction with the British’s attempt to censor them

with the Stamp Act of 1765 is just one of the many

examples that demonstrate the Framers’ intent to

ensure that the First Amendment provided broad

press protections. See McConnell v. Federal Election

Com’n, 540 U.S. 93, 252-253 (Scalia, J., concurring),

Justice Scalia determined that the founders saw the

Act as a “grievous incursions on the freedom of the

press.”

This Court has repeatedly affirmed the Framers’

historical commitment to press freedom. In New York

Times Co. v. United States, 403 U.S. 713, 717 (1971)

(Black, J., concurring), Justice Black emphasized

that the First Amendment’s history and language

protect the press’s freedom to publish news

“whatever

the

source,

without

censorship,

injunctions, or prior restraints.” He added that the

press was protected to “bare the secrets of

government and inform the people,” a function that

hinges on unfettered newsgathering. Id. This

principal traces back to the people’s quick and

overwhelming rejection of laws like the Sedition Act

of 1798, which sought to criminalize publications

critical of the government. This Act required that “if

any person shall write, print, utter or publish … any

false, scandalous and malicious writing or writings

against the government … [they] shall be punished

… .” Sedition Act of 1798, ch. 74, 1 Stat. 596 (expired

1801).

Several individuals were tried under the Sedition

Act, and more still moderated their behavior due to

it. New York Times Co. v. Sullivan, 376 U.S. 254, 298

n 1 (1964) (Goldburg, J., Concurrence, compiling

cases). The subsequent political repudiation of the

Sedition Act, including Congress’s repayment of

fines, reflects a national consensus that such

restrictions on the press are antithetical to the First

Amendment. New York Times Co. v. Sullivan, 376

U.S. 254, 276 (1964).

This history underscores the Framers’ intent to

protect newsgathering as essential to democratic

accountability. See Grosjean v. Am. Press Co., 297

U.S. 233, 249 (1936) (“[I]t is evident that the

restricted rules of the English law in respect of the

freedom of the press in force when the Constitution

was adopted were never accepted by the American

colonists, and that by the First Amendment it was

meant to preclude the national government, and by

the Fourteenth Amendment to preclude the states,

from adopting any form of previous restraint upon

printed publications, or their circulation, including

that which had theretofore been effected by these two

wellknown and odious methods.”).

B. Rejection of Prior Restraints

This Court’s jurisprudence establishes that the

First Amendment’s core protection against prior

restraints extends to newsgathering. In Near v.

Minnesota, the Court struck down a Minnesota

statute that allowed injunctions against publications

deemed malicious or defamatory, recognizing that

such laws impose “effective censorship” by

suppressing the press’s ability to expose official

misconduct. Near, 283 U.S. at 712, 716. The statute’s

requirement that publishers prove the truth of their

allegations with “good motives” and “justifiable ends”

placed an intolerable burden on newsgathering,

chilling investigative journalism. Id. at 711–712. The

Court’s holding that the liberty of the press “has

meant, principally although not exclusively,

immunity from previous restraints or censorship”

underscores that newsgathering must be free from

preemptive governmental controls. Id. at 716–717.

Similarly, in Organization for a Better Austin v.

Keefe, 402 U.S. 415, 419 (1971), the Court invalidated

an injunction that suppressed the distribution of

literature critical of a private individual,

emphasizing the “heavy presumption” against the

constitutional validity of prior restraints. Directly

relevant to the facts in Project Veritas, the Court

noted that there was no support for the claim that an

interest against “invasion of privacy” was sufficient

to support a restriction of “public criticism” of

“business practices.”

Id. 420–421. The Court’s

reasoning in Organization for a Better Austin applies

directly to newsgathering: if the press cannot be

restrained from disseminating information, it follows

that the act of gathering that information must also

be protected. Any restriction that impedes the press’s

ability to seek out news risks “eviscerat[ing]” the

freedom of the press. Branzburg v. Hayes, 408 U.S.

665, 681 (1972).

C. Newsgathering Must be Protected as

Integral to Press Freedom.

The Court has explicitly recognized that

newsgathering enjoys First Amendment protection.

This Court has held that “without some protection for

seeking out the news, freedom of the press could be

eviscerated.” Branzburg v. Hayes, 408 U.S. 665, 681

(1972). This principle reflects the reality that the

press’s ability to inform the public depends on its

capacity to access and investigate information. While

the Court in Houchins v. KQED, Inc., 438 U.S. 1, 15

(1978), held that the First Amendment does not

mandate access to government-controlled facilities

and information, it did not diminish the press’s right

to gather news through open and lawful means.

Indeed, the Court has distinguished between

impermissible acts, such as breaking and entering to

obtain news, Cohen v. Cowles Media Co., 501 U.S.

663, 669 (1991), and the protected activity of

newsgathering through direct sources and open

channels. Recording in public settings, as Project

Veritas and amici did, is protected speech,

particularly when exposing the truth about matters

of public interest. Animal Legal Def. Fund v. Wasden,

878 F.3d 1184, 1203 (9th Cir. 2018).

Oregon’s ORS § 165.540, like California’s § 632,

threatens this right by criminalizing recordings

without all-party consent, even in public venues.

Such laws risk content-based enforcement, as seen in

amici’s prosecution, and require this Court’s review

to align with the First Amendment’s historical scope.

See United States v. Stevens, 559 U.S. 460, 473

(2010).

CONCLUSION

Oregon’s two-party consent law threatens the

First Amendment’s guarantee of free press by

chilling undercover journalism. Amici’s prosecution

under a similar California law demonstrates the realworld harm of selective content-based prosecution

under a similar recording statute. This Court should

grant certiorari to clarify that the First Amendment

protects recording matters of public interest in public

settings without the consent of all parties, ensuring

journalists can uncover truth without fear of selective

prosecution. Failure to act risks eroding the Framer’s

intention for the press to maintain its role as a

democratic guardian.

Respectfully submitted,