Opposition 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.,

v.

Petitioner,

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 IN OPPOSITION

_____________

DAN RAYFIELD

Attorney General of Oregon

BENJAMIN GUTMAN

Solicitor General

Counsel of Record

1162 Court Street NE

Salem, Oregon 97301

(503) 378-4402

benjamin.gutman@

doj.oregon.gov

QUESTION PRESENTED

Or. Rev. Stat. § 165.540(1)(c) prohibits recording

conversations unless all parties are notified, with some

exceptions. The exceptions include recording a conversation “during a felony that endangers human life” and

openly recording conversations with on-duty law enforcement officials.

1. Are those exceptions content neutral?

2. If the statute is subject to intermediate scrutiny

under the First Amendment, does the state’s interest

in conversational privacy justify the restriction on secret recordings?

i

TABLE OF CONTENTS

Page(s)

QUESTION PRESENTED ........................................... i

TABLE OF CONTENTS.............................................. ii

INTRODUCTION ........................................................ 1

BACKGROUND ........................................................... 2

REASONS TO DENY REVIEW .................................. 9

A. The court of appeals’ ruling on content neutrality

neither conflicts with decisions of this Court nor

implicates a circuit split. ...................................... 10

1. Neither Reed nor City of Austin addressed a

law like the one here. ...................................... 11

2. The decision here does not conflict with

decisions invalidating Ag-Gag laws. .............. 13

B. This case is a poor vehicle for addressing the

questions presented. ............................................. 16

1. Petitioners ignore the court of appeals’

alternative holding on severability. ............... 16

2. Petitioners seem to be pursuing only a facial

challenge, which is easily answered. .............. 17

C. The court of appeals’ decision is correct. ............. 21

1. Or. Rev. Stat. § 165.540 is content neutral. ... 21

2. Or. Rev. Stat. § 165.540 is narrowly tailored to

serve a significant government interest......... 25

CONCLUSION .......................................................... 30

ii

TABLE OF AUTHORITIES

Cases

Page(s)

ACLU v. Alvarez,

679 F.3d 583 (7th Cir. 2012) .................................. 16

Animal Legal Defense Fund v. Kelly,

9 F.4th 1219 (10th Cir. 2021) ................................ 13

Animal Legal Defense Fund v. Reynolds,

8 F.4th 781 (8th Cir. 2021) .............................. 14, 19

Animal Legal Defense Fund v. Wasden,

878 F.3d 1184 (9th Cir. 2018) ...................... 5, 13, 19

Barr v. Am. Ass’n of Political Consultants, Inc.,

140 S. Ct. 2335 (2020) ............................................ 22

Bartnicki v. Vopper,

532 U.S. 514 (2001) ................................................ 28

Cahaly v. Larosa,

796 F.3d 399 (4th Cir. 2015) .................................. 15

City of Austin v. Reagan National Advertising,

596 U.S. 61 (2022) ................ 5, 10, 11, 12, 21, 22, 24

Eldred v. Ashcroft,

537 U.S. 186 (2003) ................................................ 28

Expressions Hair Design v. Schneiderman,

581 U.S. 37 (2017) .................................................. 17

Harper & Row Publishers, Inc. v. Nation Enters.,

471 U.S. 539 (1985) ............................................ 7, 28

Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp.,

515 U.S. 557 (1995) .................................................. 7

Members of City Council of Los Angeles v. Taxpayers

for Vincent,

466 U.S. 789 (1984) ................................................ 24

Norton v. City of Springfield,

806 F.3d 411 (7th Cir. 2015) .................................. 15

iii

PETA v. N.C. Farm Bureau Fed’n,

60 F.4th 815 (4th Cir. 2023),

cert. den., 144 S. Ct. 325 (2023) ............................. 15

Project Veritas Action Fund v. Rollins,

982 F.3d 813 (1st Cir. 2020),

cert. den., 142 S. Ct. 560 (2021) ....................... 16, 20

Reed v. Town of Gilbert,

576 U.S. 155 (2015) ................ 5, 6, 10, 11, 21, 22, 24

Snyder v. Phelps,

562 U.S. 443 (2011) ................................................ 29

Texas v. Johnson,

491 U.S. 397 (1989) ................................................ 20

Turner Broad. Sys., Inc. v. FCC,

512 U.S. 622 (1994) ................................................ 26

United States v. Hansen,

599 U.S. 762 (2023) .......................................... 18, 19

Ward v. Rock Against Racism,

491 U.S. 781 (1989) .......................................... 25, 26

Constitutional and Statutory Provisions

Or. Rev. Stat. § 165.540 ................... 4, 5, 11, 12, 21, 25

Or. Rev. Stat. § 165.540(1) .......................................... 3

Or. Rev. Stat. § 165.540(1)(c) .. 3, 17, 19, 20, 21, 22, 26

Or. Rev. Stat. § 165.540(3) .......................................... 3

Or. Rev. Stat. § 165.540(5)(a) ............................ 3, 6, 23

Or. Rev. Stat. § 165.540(5)(b) ............................ 3, 6, 22

Or. Rev. Stat. § 165.540(6)(a) .................................... 27

Or. Rev. Stat. § 165.540(6)(a)(A) ............................... 29

Or. Rev. Stat. § 165.540(8) .......................................... 3

US Const, Amend I ........................................................

.............. 1, 4, 5, 12, 14, 15, 18, 19, 20, 21, 26, 28, 29

iv

INTRODUCTION

A recording of a conversation can be a form of

speech protected by the First Amendment. But the

speech belongs not just to the person who made the recording; it also belongs to the people whose words were

captured. That basic insight makes this case—involving restrictions on secretly recording someone else’s

speech—both easy as a matter of constitutional law

and different from the many other contexts that petitioners and their amici invoke, like filming agricultural

operations, that do not inherently involve someone

else’s speech.

This Court has long recognized that the right to free

speech encompasses the freedom to choose whether to

speak, including the freedom to choose whether to

speak publicly. Oregon law protects that freedom by requiring notice to all participants before most face-toface conversations can be recorded. That requirement

allows speakers to decide whether they want to speak

to an audience broader than those within earshot. A

person who is willing to speak in one context—an Alcoholics Anonymous meeting, a confessional booth, a

hushed conversation with a close friend on a park

bench—does not necessarily want the statement preserved in perpetuity so that it can be shared with others.

The court of appeals correctly upheld the Oregon

law against a First Amendment challenge. To the extent it affects the creation of audio recordings as a form

2

of speech, Oregon’s modest notification requirement is

a valid time, place, or manner restriction. No decision

from this Court or from another court of appeals holds

that it is a content-based regulation of speech or that

it fails intermediate scrutiny. And whatever quarrel

petitioners and their amici may have with Oregon’s

policy decision to protect conversational privacy

through a notice requirement, this case is a poor vehicle to address them. This Court should deny the petition.

BACKGROUND

1. Oregon law provides that a person may not record a “conversation”—oral communications that are

not transmitted by phone or radio—unless all participants are “specifically informed” that it is being recorded:

Except as otherwise provided * * *, a person may not:

***

(c) Obtain or attempt to obtain the whole

or any part of a conversation by means of

any device, contrivance, machine or apparatus, whether electrical, mechanical,

manual or otherwise, if not all participants in the conversation are specifically

informed that their conversation is being

obtained.

3

Or. Rev. Stat. § 165.540(1). Violation of that provision

is a misdemeanor. Or. Rev. Stat. § 165.540(9). (The full

statute appears at App. 209a–217a.)

The prohibition against secretly recording conversations is subject to several exceptions, two of which

are at issue here. The prohibition does not apply to “[a]

person who records a conversation during a felony that

endangers human life[.]” Or. Rev. Stat. § 165.540(5)(a).

Nor does the prohibition apply to “[a] person who records a conversation in which a law enforcement officer

is a participant” when the officer is performing official

duties, the recording is made openly, the conversation

is audible to the person by normal unaided hearing,

and the person is in a place they lawfully may be. Or.

Rev. Stat. § 165.540(5)(b).1

1 Petitioners’ amici betray a lack of familiarity with Or-

egon law or the facts of this case. Section 165.540(1)(c)

does not require consent, only notice. Citizens News

Guild Amicus Br. 2; Center for Medical Progress Amicus Br. 2; Law Professors Amicus Br. 3; Animal Advocacy Organizations Amicus Br. 14. Or. Rev. Stat.

§ 165.540(3) allows recordings made in one’s home,

which covers some of the domestic-violence and childsafety hypotheticals offered. Rutherford Institute Amicus Br. 5, 11. The law does not restrict video recordings

without audio, which could include monitoring cameras. Id. at 11. And petitioners have not challenged

various other statutory exceptions as content based.

Liberty Justice Center Amicus Br. at 7–8.

4

2. Petitioners are a media organization that wants

to conduct “undercover investigations” in Oregon by secretly recording conversations related to corruption at

state agencies and violent protests in Portland. App.

3a, 6a. They sued respondents, the district attorney

whose county includes Portland and the state’s attorney general, arguing that the notice requirement in Or.

Rev. Stat. § 165.540 violates their First Amendment

rights. App. 6a.

The district court granted respondents’ motion

to dismiss those claims. App. 204a. The court determined that the law was a content-neutral regulation

and thus applied intermediate scrutiny. App. 195a. It

then concluded that Or. Rev. Stat. § 165.540 satisfies

intermediate scrutiny because the law does not burden

substantially more speech than is necessary to serve

the government’s significant interest in “safeguarding

individual privacy.” App. 203a.

3. On appeal, a divided panel initially held that the

statute was facially unconstitutional. App. 96a. Applying circuit precedent, the majority concluded that the

statute’s exceptions made it content based and that it

was not sufficiently tailored to satisfy strict scrutiny.

App. 123a. Alternatively, the majority concluded that

the statute would fail intermediate scrutiny even if it

were content neutral. App. 127a–128a.

Judge Christen dissented, concluding that the exceptions were severable from the rest of the statute and

5

that the rest of the statute satisfied intermediate scrutiny. App. 139a.

4. The court of appeals granted en banc review

and, by a 9-2 vote, affirmed dismissal of the complaint

for failure to state a claim. App. 2a, 78a. The court

treated the complaint as having raised both facial and

as-applied challenges to Or. Rev. Stat. § 165.540, and

it concluded that the as-applied challenge was ripe.

App. 7a–14a. It also concluded that the statute regulates at least some speech subject to First Amendment

scrutiny, because “recording conversations in connection with [] newsgathering activities is protected

speech.” App. 14a; see also id. at 22a (declining to decide whether other kinds of recordings also are protected speech). In so doing, it reaffirmed its previous

holding in Animal Legal Defense Fund v. Wasden, 878

F.3d 1184 (9th Cir. 2018), which held that a so-called

Ag-Gag law barring undercover recording of certain

animal facilities implicated the First Amendment.

App. 20a–21a.

The court next concluded that Or. Rev. Stat.

§ 165.540 is a content-neutral, not content-based, regulation of speech. App. 30a. Applying this Court’s test

for content neutrality from Reed v. Town of Gilbert, 576

U.S. 155 (2015), and City of Austin v. Reagan National

Advertising, 596 U.S. 61 (2022), the court explained

that the statute “does not draw distinctions based on

the message a speaker conveys, and it was not adopted

because of the government’s disagreement with the

speaker’s message.” App. 31a (cleaned up; quoting

6

Reed). It also concluded that neither of the exceptions

to the ban on secret recording was content based. App.

32a. The exception for conversations recorded “during

a felony that endangers human life,” Or. Rev. Stat.

§ 165.540(5)(a), “turns on when a recorded conversation occurs, and not the subject matter of that conversation,” App. 32a (emphasis in original). Similarly, the

exception for openly recording certain conversations

involving law enforcement, Or. Rev. Stat.

§ 165.540(5)(b) applies “regardless of what the conversation is about” and so “draws a line based on the circumstances in which a recording is made, not on the

content of the conversation recorded.” App. 33a.

Because it concluded that the statute is content

neutral, the court subjected it to intermediate scrutiny.

App. 35a. Under that test, a regulation of speech is permissible if it is “narrowly tailored to serve a significant

government interest” and “leave[s] open ample alternative channels for communication of the information.”

App. 35a.

The court “easily” concluded that the state’s interest in “ensuring that its residents know when their

conversations are being record” qualifies as a “significant government interest.” App. 36a. “[S]ecretly recording a conversation presents privacy concerns that

are different in kind, and more corrosive, than merely

having one’s oral communications heard and repeated.” App. 39a. For example, recordings “may be

made easily, stored indefinitely, disseminated widely,

and played repeatedly,” and they may “create the

7

illusion of objectivity, even where the recording omits

critical context due to selective editing or recording.”

App. 39a–40a. Secret recording also “may enable a

party to disseminate another’s oral comments in a way

the speaker did not intend” and so implicate “the principle of autonomy to control one’s own speech” including “the freedom not to speak publicly.” App. 41a–42a

(quoting Hurley v. Irish-Am. Gay, Lesbian & Bisexual

Grp., 515 U.S. 557, 574 (1995), and Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 559 (1985))

(emphasis in original). And even conversations that

take place in public or semi-public locations may not be

intended to be shared beyond the participants—for example, “twelve-step groups, bible study, and religious

services.” App. 42a–43a.

The court concluded that the statute is “sufficiently

narrow” to be tailored to the state’s interest in conversational privacy. App. 43a. The statute has “a relatively modest notice requirement” that allows a person

to “choose to speak or remain silent” but does not require consent. App. 43a. The various exceptions to the

notice requirement “accounts for some settings in

which people cannot reasonably expect not to have

their oral statements recorded,” including meetings

and classes. App. 44a. Although one might be able to

conceive of situations that would not fall within a statutory exception but where the participants should expect to be recorded—”a loud argument on the street, a

political provocateur on a crowded subway, or a drunk,

hate-filled conversation in a parking lot”—those

“fringe examples” are not enough to undermine the

8

law’s narrow tailoring. App. 45a. Indeed, petitioners’

“resort to niche examples reinforces the conclusion that

the bulk of Oregon’s protection against secret audio recording is targeted at achieving Oregon’s significant interest.” App. 45a–46a.

The court also concluded that the law leaves open

ample alternative channels of communication. App.

46a. Petitioners “may employ all the traditional tools

of investigative reporting,” including “hav[ing] its reporters go undercover and report on what they have

seen and heard—without secretly recording its targets—as journalists have done for centuries.” App. 48a.

Finally, the court reached two alternative grounds

for rejecting parts of petitioners’ claims. First, the

court held that even if the statute’s exceptions were

content based, as a matter of Oregon law they are severable from the rest of the statute, leaving in place the

content-neutral general prohibition on secret recording. App. 49a–52a. Second, the court held that even if

the law were unconstitutional as applied to the sort of

investigative journalism that petitioners want to perform, the facial challenge to the statute still would fail

because those circumstances are “plainly a tiny fraction of the whole” and “the ratio of unlawful-to-lawful

applications is not lopsided enough to justify the strong

medicine of facial invalidation for overbreadth.” App.

55a (cleaned up).

Concurring in the judgment, Judge Bennett further

emphasized that last point. App. 56a–57a & n.2. He explained that petitioners’ facial challenge fails because

9

“there is no historical or precedential foundation to

support that simply pressing record in secret or without announcement is always protected speech.” App

56a. “Pressing a record button, whether in secret or

without announcement, is purely mechanical. That

conduct conveys no message.” App. 63a. Thus, “even if

some button pushing could amount to protected

speech,” id. n.8, the constitutional applications of the

statute are not substantially outweighed by the potentially unconstitutional applications, App 74a.

Judges Lee and Collins dissented. App. 78a. They

would have held that the exception for open recording

of conversations involving law enforcement was not

content neutral and was not severable as a matter of

Oregon law. App. 87a–94a. They also would have held

that the law did not survive intermediate scrutiny because it was not sufficiently tailored to protect conversational privacy. App. 81a–86a.

REASONS TO DENY REVIEW

The decision below does not conflict with any decisions from this Court or from other courts of appeals,

none of which have addressed—much less struck

down—a notice requirement for recording conversations like the one required by the Oregon statute at issue here. This case also suffers from significant vehicle

problems that the petition ignores. First, the court of

appeals’ alternative ruling on severability—an issue of

state law—means that the question whether the statute’s exceptions are content neutral has no practical

10

effect on the resolution of this case. Second, petitioners

now seem to be pursuing only a facial challenge to the

statute, which is easily answered given the difficulty of

mounting facial challenges generally. And if they were

still pursuing an as-applied challenge, that would raise

a serious ripeness question that the petition does not

address. In any event, the decision below is correct and

does not warrant further review.

A. The court of appeals’ ruling on content

neutrality neither conflicts with decisions of

this Court nor implicates a circuit split.

Petitioners’ first question presented asserts that

the court of appeals’ content-neutrality ruling here is

“in conflict with this Court’s decisions in Reed v. Town

of Gilbert and City of Austin v. Reagan National Advertising and with the Fourth, Seventh, Eighth, and

Tenth Circuits.” Pet. i–ii. That extravagant claim does

not bear scrutiny.

To recap, the court of appeals here held that the Oregon statute is content neutral because it places “neutral, content-agnostic limits on the circumstances under which an unannounced recording of a conversation

may be made.” App. 30a. Although participants might

choose to express themselves differently (or not at all)

if they know they are being recorded, that does not

make the facially neutral prohibition on secret recording content based. Id. at 31a. Nor do the exceptions to

the prohibition transform it into a content-based regulation. Id. at 32a–34a. Each of the exceptions at issue—

11

for conversations “during” a life-endangering felony

and conversations “in which” a law enforcement official

is participating—“draws a line based on the circumstances in which a recording is made, not on the content of the conversation recorded.” Id. at 33a.

1. Neither Reed nor City of Austin addressed

a law like the one here.

The court of appeals’ holding on content neutrality

does not conflict with Reed or City of Austin, neither of

which involved a law like Or. Rev. Stat. § 165.540.

They involved the regulation of outdoor signs without

a permit, not the recording of conversations. Reed held

that the town’s sign code was facially content based because it imposed different rules for “Ideological Signs,”

“Political Signs,” and “Temporary Directional Signs”—

categories that depended on the signs’ “communicative

content” and that singled out “specific subject matters

for differential treatment.” Reed, 576 U.S. at 164, 169.

City of Austin reached the opposite conclusion when

the distinction was between on- and off-premises signs,

which “requires an examination of speech only in service of drawing neutral, location-based lines” and is

“agnostic as to content.” City of Austin, 596 U.S. at 69.

This Court distinguished Reed because the law in City

of Austin did not “single out any topic or subject matter

for differential treatment” but rather drew a line

“based on location.” Id. at 71.

Neither Reed nor City of Austin addressed, much

less resolved, whether a law like Or. Rev.

12

Stat. § 165.540 is content neutral. Neither case needed

to confront the threshold question whether the act of

secretly recording another person’s speech is subject to

First Amendment scrutiny at all. See App. 56a (Bennett, J., concurring) (noting that “there is no historical

or precedential foundation to support that simply

pressing record in secret or without announcement is

always protected speech”). Neither case suggested that

circumstance-based distinctions, like whether a felony

is occurring or whether law enforcement is involved,

are inherently content based.

Petitioners argue that the statutory exceptions single out “specific content for different treatment,” Pet.

11, but they do not. The content of the speech—assuming that the recording is protected speech—is irrelevant. All that matters is the circumstances under

which the recording was created. Indeed, it might not

even be necessary to listen to the recording to determine whether an exception applies. A person who witnessed the recording being made might be able to determine whether it was lawfully made or not, regardless of whether they could also hear or understand any

of the conversation being recorded. What matters is not

what was said, but what was happening. That makes

the analysis here even more straightforward than it

was in City of Austin, where the law was content neutral even though it did require examining the signs’

content.

13

2. The decision here does not conflict with

decisions invalidating Ag-Gag laws.

Petitioners’ claim of a circuit split is equally hyperbolic. They suggest that the decision below conflicts

with decisions from the Eighth and Tenth Circuits

about “Ag-Gag” laws, which restrict recording certain

farm activities. Pet. 16–18. But the Ninth Circuit’s ruling here does not conflict with either of those decisions.

In fact, the Ninth Circuit too has struck down Ag-Gag

laws. See Animal Legal Defense Fund, 878 F.3d 1184

(striking down a law that banned making a misrepresentation to enter a production facility or recording a

facility’s operations).

The Tenth Circuit struck down provisions of a Kansas law that made it a crime under certain circumstances to enter or exercise control over animal facilities “with the intent to damage the enterprise” if the

person did not have “effective consent” from the owner.

Animal Legal Defense Fund v. Kelly, 9 F.4th 1219,

1224–25 (10th Cir. 2021). The law provided that consent was not “effective” if it was induced by, among

other things, “fraud” or “deception.” Id. at 1225. The

Tenth Circuit held that the law regulated speech, not

conduct, because the fraud-or-deception exclusions

“regulate what may be permissibly said to gain access

to or control over an animal facility.” Id. at 1232. And

it held that the law was content based—in fact, viewpoint based—because the intent-to-damage-the-enterprise element “places pro-animal facility viewpoints

above anti-animal facility viewpoints.” Id. at 1233.

14

Similarly, it held that a subsection of the law that forbade video recording or photographs of animals involved speech and was viewpoint discriminatory for

the same reason. Id. 1235–36.

Regardless of whether the Tenth Circuit’s legal

analysis was correct, see id. at 1246 (Hartz, J., dissenting), it has no bearing on whether the law at issue in

this case is content neutral. Unlike Kansas’s law, Oregon’s law does not turn on whether a recording is made

with the intent to promote or oppose a particular message, such as animal cruelty. The Kansas law also was

not targeted at conversations that, by their nature, implicate someone else’s freedom to speak.

The Eighth Circuit case is even less germane. The

Eighth Circuit decision struck down a provision of an

Iowa law that criminalized knowingly making “a false

statement or representation” in an application for employment at an agricultural production facility, if the

statement was made with the intent to commit certain

unauthorized acts at the facility. Animal Legal Defense

Fund v. Reynolds, 8 F.4th 781, 783 (8th Cir. 2021). The

provision indisputably constituted direct, contentbased regulation of speech: It prohibited “statement[s]”

based on whether they were “false.” Id. at 784 (holding

that the provision “constitutes a direct regulation of

speech” and is content based because it “prohibits expression that is ‘false,’ and an observer must examine

the content of the speech to determine whether it is

prohibited”). The Eighth Circuit struck it down as overbroad because, although the First Amendment might

15

allow states to regulate “false claims to secure offers of

employment,” the statute “sweeps more broadly” by

prohibiting even false statements that are not “material to the employment decision.” Id. at 787. Other than

the fact that both cases involve the First Amendment,

there is nothing in common between that Eighth Circuit decision and this case. The statute at issue here

does not regulate based on the truth or falsity of

speech.

Petitioners’ question presented also mentions the

Fourth and Seventh Circuits, but they develop no argument in the body of the petition about any circuit

split involving those courts. They mention a Fourth

Circuit case in a footnote on page 11, but that case (like

the ones discussed above) involved a viewpoint-discriminatory Ag-Gag law, not a ban on secret recordings

of conversations. PETA v. N.C. Farm Bureau Fed’n, 60

F.4th 815, 828 (4th Cir. 2023), cert. den., 144 S. Ct. 325

(2023). They also mention Fourth and Seventh Circuit

cases in passing on page 13 of the petition, but those

cases too are not on point. Cahaly v. Larosa, 796 F.3d

399, 402, 405 (4th Cir. 2015), held that a law prohibiting robocalls “of a political nature” was content based.

Norton v. City of Springfield, 806 F.3d 411, 412 (7th

Cir. 2015), held that an ordinance prohibiting panhandling—“an oral request for an immediate donation of

money”—was content based. The laws in both cases

drew distinctions based on the subject matter of the

communication. The Oregon law at issue here does not.

16

There is no circuit split about whether a law like

the one at issue here is content neutral. The closest decisions are those addressing other state’s restrictions

on eavesdropping and secret recording. Those decisions

uniformly treat the laws as content neutral. Project

Veritas Action Fund v. Rollins, 982 F.3d 813, 834–35

(1st Cir. 2020), cert. den., 142 S. Ct. 560 (2021); ACLU

v. Alvarez, 679 F.3d 583, 603 (7th Cir. 2012).

B. This case is a poor vehicle for addressing the

questions presented.

Even if petitioners’ questions presented were otherwise certworthy, the petition suffers from significant

vehicle problems that counsel against granting review.

1. Petitioners ignore the court of appeals’

alternative holding on severability.

Petitioners’ first question presented, about content

neutrality, is based on the statutory exceptions for conversations involving a police officer and conversations

during a life-endangering felony. As discussed further

below, the court of appeals correctly held that those exceptions are content neutral. But it also reached an alternative holding, concluding that “[e]ven if we agreed

with Project Veritas that the statutory exceptions it

challenges are content based,” as a matter of Oregon

law those exceptions are severable from the rest of the

statute. App. 49a, 52a; see also App. 145a–149a, 161a–

166a (panel dissent discussing severability at greater

length).

17

Petitioners ignore that part of the decision below.

But its upshot is that their first question presented has

no bearing on the outcome of this case. Even if they

were right that the exceptions are not content neutral,

the exceptions would be severed from the statute, the

remaining prohibition on secret recording would be

content neutral, and the analysis would proceed under

intermediate rather than strict scrutiny. Petitioners’

alleged circuit split regarding the test for content neutrality makes no difference to the result here.

Nor is the severability question one that warrants

this Court’s attention. As the majority and dissent below agreed, it is purely a question of state law. App.

49a, 92a. This Court “generally accord[s] great deference to the interpretation and application of state law

by the courts of appeals” so as to “render unnecessary

review of their decisions in this respect.” Expressions

Hair Design v. Schneiderman, 581 U.S. 37, 45 (2017).

Petitioners have not asked for review of the state-law

question of severability, and that makes their first

question presented of only academic interest in the

context of this case.

2. Petitioners seem to be pursuing only a

facial challenge, which is easily answered.

The majority below generously construed petitioners’ complaint as raising both facial and as-applied

challenges to Or. Rev. Stat. § 165.540(1)(c). App. 7a–

10a; but see App. 105a (panel decision construed it as

raising only a facial challenge). The petition, however,

18

seems to pursue only the facial challenge, perhaps recognizing that the fact-specific application of the law to

a limited set of circumstances would not warrant this

Court’s attention. See, e.g., Pet. 19 (“Oregon’s law is facially content based”). The petition does not use the

phrase “as applied” even once, suggesting that petitioners have abandoned that part of their claim.

That choice sharply limits the analysis and effectively dooms their case on the merits. “[L]itigants

mounting a facial challenge to a statute normally must

establish that no set of circumstances exists under

which the statute would be valid.” United States v.

Hansen, 599 U.S. 762, 769 (2023) (emphasis in original; cleaned up). In the First Amendment context

where a party challenges a law as overbroad, courts

will invalidate a law if “the statute prohibits a substantial amount of protected speech relative to its plainly

legitimate sweep.” Id. at 770 (cleaned up). But the “unconstitutional applications must be realistic, not fanciful, and their number must be substantially disproportionate to the statute’s lawful sweep. In the absence of

a lopsided ratio, courts must handle unconstitutional

applications as they usually do—case-by-case.” Id. (citations omitted).

Petitioners’ concessions below make it exceptionally difficult for them to meet that high bar. As the majority below noted, petitioners “conced[ed] that the

statute may permissibly apply where someone secretly

records a private conversation,” including “‘a hushed

conversation in a secluded hallway, the musings of a

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friend whispering his life’s woes to another friend, in

confidence, in a secluded office, or colleagues discussing confidential medical options in a hospital visitation

room.’” App. 53a (quoting 9th Cir. Appellants’ Br. 52).

Petitioners also conceded that they were not challenging the statute’s application to “eavesdropping”—that

is, secretly recording a conversation to which one is not

a party. App 58a n.5. Even if the statute were unconstitutional in some applications—even if, as petitioners

and some of their amici contend, it would be unconstitutional as applied to undercover reporting—”these applications represent only a sliver of the conversations

to which section 165.540(1)(c) may apply.” App. 55a.

Petitioners’ facial claim fails for that reason alone.

Beyond petitioners’ concessions, Or. Rev. Stat.

§ 165.540(1)(c) also “encompasses a great deal of nonexpressive conduct—which does not implicate the First

Amendment at all.” Hansen, 599 U.S. at 782. Judge

Bennett’s concurrence below explores that point more

fully. “[T]here is no historical or precedential foundation to support that simply pressing record in secret or

without announcement is always protected speech.”

App. 56a (Bennett, J., concurring) (emphasis added).

Recording someone else’s speech is not inherently communicative. Pushing the button is conduct, not speech

or a direct substitute for speech. Of course, some recordings may involve “decisions about content, composition, lighting, volume, and angles” that “are expressive in the same way as the written word or a musical

score.” Animal Legal Defense Fund, 878 F.3d at 1203.

When those aspects of the conduct are “sufficiently

20

imbued with elements of communication,” the act of recording may be entitled to First Amendment protection. Texas v. Johnson, 491 U.S. 397, 404 (1989). But

the act of recording by mechanical device is not inherently expressive. For that reason, “Project Veritas’s facial challenge fails because, even assuming that there

might be some circumstances when secret or unannounced audio recordings could be protected, those unconstitutional applications do not substantially outweigh the constitutional ones.” App. 74a (Bennett, J.,

concurring).

For those reasons, a facial challenge to Or. Rev.

Stat. § 165.540(1)(c) does not present a particularly difficult or interesting legal question, and it is not likely

to develop First Amendment law in any meaningful

way. This Court can reserve its review for a case that

either challenges a statute that does not have a concededly lawful sweep or that more squarely presents a

proper as-applied challenge.

If petitioners were still pursuing an as-applied challenge, they would face another formidable hurdle. Because respondents have not enforced, or even threatened to enforce, the law against them, there is a serious

question whether their as-applied challenge is ripe.

The court of appeals, applying circuit precedent, concluded that it was. App. 12a. But the First Circuit rejected almost identical as-applied challenges as unripe.

Project Veritas Action Fund, 982 F.3d at 842–44. The

First Circuit has the better analysis: An as-applied

challenge necessarily depends on the nature, scope,

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and circumstances of the conversation that petitioners

wish to secretly record, but the specific facts needed to

assess the constitutionality of a particular recording

are not presented here. Regardless, however, the ripeness question (which is jurisdictional) is one this Court

would have to decide if it were to grant review of an asapplied challenge. The briefing will likely devolve into

a dispute about that issue, which the petition does not

address.

C. The court of appeals’ decision is correct.

On the merits, the court of appeals correctly answered both questions presented: Or. Rev. Stat.

§ 165.540(1)(c) and its exceptions are content neutral,

and the law satisfies intermediate scrutiny. The First

Amendment does not confer an unfettered right to secretly record someone else’s speech without informing

them, nor does it prevent states from imposing reasonable notice requirements to protect conversational privacy. Oregon’s notice requirement is a tailored restriction that allows for recording conversations while

respecting participants’ autonomy to choose whether to

create a new form of speech that can be shared with a

broader audience.

1. Or. Rev. Stat. § 165.540 is content neutral.

This case presents no dispute about the legal standard for content neutrality; the parties agree that Reed

and City of Austin set forth the governing principles.

Pet. 10. “Government regulation of speech is content

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based if a law applies to particular speech because of

the topic discussed or the idea or message expressed.”

Reed, 576 U.S. at 163. “[A] speech regulation targeted

at specific subject matter is content based * * *.” Reed,

576 U.S. at 169. On the other hand, regulations that

are “agnostic as to content” and do not have “a contentbased purpose or justification” are content neutral.

City of Austin, 596 U.S. at 69.

As noted, Or. Rev. Stat. § 165.540(1)(c) prohibits recording face-to-face conversations “if not all participants in the conversation are specifically informed that

their conversation is being obtained.” That general prohibition is content neutral, because it applies regardless of the subject-matter of the conversation recorded.

The law’s application does not turn on “the topic discussed or the idea or message expressed,” Reed, 576

U.S. at 163. The law governs the manner in which a

recording can be made—only with notice to the participants—but it is entirely agnostic as to the content of

the conversation being recorded.

Exceptions to a content-neutral statute can make it

content based if the exceptions themselves are content

based. Barr v. Am. Ass’n of Political Consultants, 591

U.S. 610, 618–21 (2020). But neither of the exceptions

at issue here is.

The first is Or. Rev. Stat. § 165.540(5)(b), which allows recording a conversation in which a police officer

is a participant 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

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the conversation; (c) the conversation being recorded is

audible to the person by normal unaided hearing; and

(d) the person is in a place where the person lawfully

may be. None of those criteria have anything to do with

the content of the conversation that is being recorded.

Indeed, it is not necessary to listen to the audio recording to determine whether the criteria have been met. A

person who witnessed the recording being made would

be able to determine whether it was lawfully made or

not, regardless of whether they could hear or understand any of the conversation being recorded. While

the recording itself might also provide clues as to

whether some of criteria were met, it is possible—even

likely—that it will tell the listener nothing about

whether any of the criteria were met. They turn not on

what was said during the conversation but on the circumstances in which the recording was made.

Regardless, the practical significance of the policeofficer exception is limited. As the court of appeals

pointed out, it applies only when the conversation is

recorded “openly and in plain view of the participants.”

App. 34a n.14. Petitioners are generally able to record

the conversations they want to record openly; what

they want to do is record secretly, which they could not

even under this exception. Id. The police-officer exception does not draw a distinction that affects petitioners.

The second exception also turns on the circumstances of the recording, not its contents. Or. Rev. Stat.

§ 165.540(5)(a) allows recording a conversation “during

a felony that endangers human life.” Here too, the

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content of the recording is not what determines

whether the exception applies. A person who witnessed

the recording being made would know if the exception

applied on the basis of the circumstances in which it

was made, even if that person could not hear or understand the conversation.

None of that analysis requires “resurrect[ing] the

ghost of Members of City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789 (1984),” as petitioners

claim. Pet. 12. It turns on the principles in Reed and

City of Austin, along with a straightforward reading of

the plain text of the state statute. The exceptions do

not “single[] out any topic or subject matter for differential treatment,” City of Austin, 596 U.S. at 71 (Pet.

13); they apply different rules to different factual circumstances that are wholly separate from the content

of any speech. Because one need not know anything

about the content of the recording to determine if the

prohibition on secret recordings applies, it is content

neutral.

Petitioners mention in passing some of the other exceptions to the statute—for example, the exception for

recording in one’s home (Pet. 5–6)—but they develop

no argument about those exceptions, which are not

within the scope of the questions presented. Regardless, they too all turn on circumstances rather than

content.

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2. Or. Rev. Stat. § 165.540 is narrowly tailored

to serve a significant government interest.

Because the statute is not content based, it is subject

to (at most) intermediate scrutiny. “[T]he government

may impose reasonable restrictions on the time, place,

or manner of protected speech, provided the restrictions are justified without reference to the content

of the regulated speech, that they are narrowly tailored

to serve a significant governmental interest, and that

they leave open ample alternative channels for communication of the information.” Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989) (cleaned up).

Petitioners in this Court have narrowed their challenge to the narrow-tailoring prong of the analysis. Pet.

21. They do not take issue with much of the court of

appeals’ analysis: that the state has a significant governmental interest in protecting conversational privacy, that a notice requirement is an appropriate

means to address that interest, and that it leaves ample alternative challenges for communication. But they

argue that all that is true only for eavesdropping or for

conversations in private settings, and that the law extends too far to the extent it restricts recording conversations in “wholly public settings” like cafes and sidewalks. Pet. ii, 21.

But a hushed conversation with a close friend at a

cafe or on a park bench can be just as sensitive as a

discussion at an AA meeting. Petitioners fail to appreciate that the “eavesdropping” concern applies just as

much to both. A conversation that is recorded can be

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heard by third parties who were not the intended audience. Just because the conversation takes place in

public—which, in petitioners’ view, apparently includes cafes and other places that intimate conversations take place—does not mean that it is meant to be

shared with the whole world. Indeed, it is hard to see

why the First Amendment would allow the state to protect, say, a quiet conversation by a hospital bed but not

the same quiet conversation in a cafe booth. And while

petitioners claim to see no meaningful difference between participants recounting conversations to others

and recordings of speakers themselves (Pet. 22), the

very premise of their case is that they need to be able

to share the speaker’s own statements rather than just

reporting on them. Cf. App. 85a (Lee, J., dissenting)

(“[S]omeone’s voice—the sound, tone, and emphasis—

can convey more meaning than mere written words on

a piece of paper.”).

To be narrowly tailored, “a regulation need not be

the least speech-restrictive means of advancing the

Government’s interests.” Turner Broad. Sys., Inc. v.

FCC, 512 U.S. 622, 662 (1994). Rather, a law is narrowly tailored so long as the “‘regulation promotes a

substantial government interest that would be

achieved less effectively absent the regulation.’” Id.

(quoting Ward, 491 U.S. at 799). Or. Rev. Stat.

§ 165.540(1)(c) promotes conversational privacy without burdening substantially more speech than is necessary to do so. It allows recording so long as the participants to the conversation have been notified. That

is a modest requirement; the law does not require

27

consent, just notification. So long as notice is provided,

recording of any conversation, even a private conversation, is allowed.

In addition, the law relaxes the notification requirement in contexts where recording is commonplace and

would be expected. For example, as long as the recording is done openly, specific notice is not required in settings like public or semipublic meetings, including

“hearings, trials, press conferences, public speeches,

rallies and sporting or other events,” classrooms, or

even private meetings “if all others involved knew or

reasonably should have known that the recording was

being made.” Or. Rev. Stat. § 165.540(6)(a). Those exceptions allow recording when a specific warning is unnecessary to prevent unfair surprise. The law is thus

narrowly tailored to serve its purpose. To the extent

the decision below turned on a contested interpretation

of the scope of the statutory exceptions, see App. 46a

n.23, that presents a non-certworthy question of state

law.

Petitioners complain that the statute forbids recording—without notice—even “loud conversations in

public.” Pet. 31. But as the court of appeals explained,

“fringe examples” like “a political provocateur on a

crowded subway, or a drunk, hate-filled conversation

in a parking lot” do not demonstrate that the law is not

narrowly tailored. And if anything, those examples all

reinforce the tailoring of the notice requirement. If petitioners mean to posit examples where the participants do not care who else hears them, giving them

28

notice of a recording is unlikely to change their behavior and they can be recorded. If they do care, they have

an interest in knowing their audience. The law is quite

well tailored to serve that interest.

Petitioners’ arguments also fail to account for the

fact that the speech they are creating—the recording of

the conversation—is in part someone else’s speech.

“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). That limitation reflects that the

person whose speech is at issue typically also has the

freedom not to speak. Thus, for example, in Harper &

Row, Publishers v. Nation Enterprises, 471 U.S. 539,

559 (1985), this Court held that the First Amendment

did not give a news magazine the right to publish

quotes from President Ford’s unpublished autobiography about his decision to pardon President Nixon.

The Court accepted that the subject matter was of significant public concern. Id. But it recognized that the

First Amendment also embodies a “freedom not to

speak publicly, one which serves the same ultimate

end as freedom of speech in its affirmative aspect.” Id.

(emphasis in original); see also Bartnicki v. Vopper, 532

U.S. 514, 533 (2001) (recognizing that “the fear of public disclosure of private conversations might well have

a chilling effect on private speech”).

Recording someone else’s speech similarly implicates the freedom not to speak publicly. The act of

29

recording creates a work that is at least partly the

speech of the person recorded. That person has a substantial interest in whether that work is created in the

first place, not to mention whether it is shared with

anyone outside of earshot. Any First Amendment analysis must account for those interests, which apply to

conversations no matter whether they take place in

private or in public.

There may be limits to the freedom not to speak,

such as for recording public events that involve matters of legitimate public concern. Cf. Snyder v. Phelps,

562 U.S. 443, 451–52 (2011) (explaining that speech on

“matters of public concern” receives greater protection

than “matters of purely private significance”). It is puzzling that petitioners think the decision below “undermines the consensus of many courts that recording

public officials and events is protected expressive conduct.” Pet. 20. The court of appeals included a whole

section of its opinion concluding that it generally is.

App. 14a–22a. And, as noted, the Oregon law allows

open recording of government meetings and public

speeches. Or. Rev. Stat. § 165.540(6)(a)(A). But even if

there were other circumstances for which the First

Amendment demanded an exception, that would not

make the statute facially unconstitutional. At worst it

would present a circumstance where the statute could

not constitutionally be applied. That would not invalidate the statute’s plainly legitimate sweep in the many

circumstances where secretly recording a conversation

is not essential to convey a message.

30

CONCLUSION

The Court should deny the petition.

Respectfully submitted,

DAN RAYFIELD

Attorney General of

Oregon

BENJAMIN GUTMAN

Solicitor General

Counsel of Record

1162 Court Street NE

Salem, OR 97301

(503) 378-4402

benjamin.gutman

@doj.oregon.gov