UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT PROJECT VERITAS; PROJECT No. 22-35271 VERITAS ACTION FUND, D.C. No. 3:20-cv- Plaintiffs-Appellants, 01435-MO

v. OPINION MICHAEL SCHMIDT, in his official capacity as Multnomah County District Attorney; ELLEN ROSENBLUM, in her official capacity as Oregon Attorney General,

Defendants-Appellees.

Appeal from the United States District Court for the District of Oregon Michael W. Mosman, District Judge, Presiding

Argued and Submitted En Banc June 25, 2024 Seattle, Washington

Filed January 7, 2025 Before: Mary H. Murguia, Chief Judge, and Kim McLane Wardlaw, Morgan Christen, Mark J. Bennett, Daniel P. Collins, Kenneth K. Lee, Jennifer Sung, Gabriel P. 2 PROJECT VERITAS V. SCHMIDT

Sanchez, Roopali H. Desai, Anthony D. Johnstone and Ana de Alba, Circuit Judges.

Opinion by Judge Christen; Concurrence by Judge Bennett; Dissent by Judge Lee

SUMMARY *

First Amendment

The en banc court affirmed the district court’s dismissal of a complaint brought by Project Veritas, a nonprofit media organization engaged almost exclusively in undercover journalism, alleging that Oregon’s conversational privacy statute violates the First Amendment. Oregon’s conversational privacy statute requires that notice be given before oral conversations may be recorded. The statute has several exceptions, including (1) the felony exception, which allows a recording of a conversation during a felony that endangers human life; and (2) the law enforcement exception, which allows a recording of a conversation in which a law enforcement officer is a participant if certain conditions are met. The en banc court construed the complaint as raising both facial and as-applied challenges to the statute and further held that the as-applied challenge was

* This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. PROJECT VERITAS V. SCHMIDT 3

constitutionally and prudentially ripe. Project Veritas articulated a concrete intention to violate the statute and self- censored to comply with the statute. The en banc court held that Project Veritas’s recording of conversations in connection with its newsgathering activities is protected speech within the meaning of the First Amendment. The conversational privacy statute, as applied to Project Veritas, regulates that speech. Because Oregon’s conversational privacy statute directly regulates Project Veritas’s act of creating speech that falls within the core of the First Amendment, it triggers First Amendment scrutiny. The en banc court next held that the conversation privacy statute is content-neutral because it does not discriminate on the basis of viewpoint or restrict discussion of an entire topic. Rather it places neutral, content-agnostic limits on the circumstances under which an unannounced recording of a conversation may be made. Neither the felony exception nor the law enforcement is content-based within the meaning of controlling First Amendment precedent. Accordingly, intermediate scrutiny applied. The conversation privacy statute survived intermediate scrutiny as applied to Project Veritas. Oregon has a significant government interest in ensuring that its residents know when their conversations are recorded, the statute is narrowly tailored to that interest, and the statute leaves open ample alternative channels of communication for Project Veritas to engage in investigative journalism and to communicate its message. Finally, the en banc court rejected Project Veritas’s facial over