Oregon, My Oregon

 At the Volokh Conspiracy, 9th Cir. Invalidates Oregon's Ban on Surreptitious Recordings of Conversations

From Project Veritas v. Schmidt, decided Monday by a Ninth Circuit panel in an opinion by Judge Sandra Ikuta, joined by Judge Carlos Bea:

Oregon law generally prohibits unannounced recordings of conversations, subject to several exceptions [including for recordings of law enforcement and for recording various crimes that endanger human lives]. We conclude that Oregon's law is a content-based restriction that violates the First Amendment right to free speech and is therefore invalid on its face….

"While the First Amendment literally forbids the abridgment only of speech, the Supreme Court has long recognized that its protection does not end at the spoken or written word." We have recognized there is no material "distinction between the process of creating a form of pure speech (such as writing or painting) and the product of these processes (the essay or artwork) in terms of the First Amendment protection afforded." Indeed, "we have never seriously questioned that the processes of writing words down on paper, painting a picture, and playing an instrument are purely expressive activities entitled to full First Amendment protection." …

Here, the state law at issue regulates individuals' conduct in making an audio or video recording. Under our case law [and that of other circuits], such conduct qualifies as speech entitled to the protection of the First Amendment….

I'm not sure I agree with the reasoning, but I agree with the result. If you don't want it recorded, don't say it.