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 December 7, 2022 Pasadena, California

Filed July 3, 2023

Before: Carlos T. Bea, Sandra S. Ikuta, and Morgan Christen, Circuit Judges. 2 PROJECT VERITAS V. SCHMIDT

Opinion by Judge Ikuta; Dissent by Judge Christen

SUMMARY *

Civil Rights / First Amendment

The panel reversed the district court’s dismissal of a complaint challenging, as an unconstitutional restriction of protected speech, Section 165.540(1)(c) of the Oregon Revised Code, which generally prohibits unannounced recordings of conversations, subject to several exceptions. Section 165.540(1)(c) of the Oregon Revised Statutes provides that a person may not obtain or attempt to obtain the whole or any part of a conversation by means of any device if not all participants in the conversation are specifically informed that their conversation is being obtained. The law provides two exceptions relevant to this appeal: (1) section 165.540(1)(c) does not apply to a person who records a conversation during a felony that endangers human life, Or. Rev. Stat § 165.540(5)(a); and (2) section 165.540(1)(c) allows a person to record a conversation in which a law enforcement officer is a participant if the recording is made while the officer is performing official duties and meets other criteria. Plaintiff Project Veritas, a non-profit media organization that engages in undercover investigative journalism, states that it documents matters of

* 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

public concern by making unannounced audiovisual recordings of conversations, often in places open to the public. Applying Animal Legal Def. Fund. v. Wasden, 878 F.3d 1184 (9th Cir. 2018), the panel held that section 165.540(1)(c) regulates protected speech (unannounced audiovisual recording) and is content based because it distinguishes between particular topics by restricting some subject matters (e.g., a state executive officer’s official activities) and not others (e.g., a police officer’s official activities). As a content-based restriction, the rule fails strict scrutiny review because the law is not narrowly tailored to achieving a compelling governmental interest in protecting conversational privacy with respect to each activity within the proscription’s scope, which necessarily includes its regulation of protected speech in places open to the public. Thus, citing Cohen v. California, 403 U.S. 15, 21 (1971), and Hill v. Colorado, 530 U.S. 703, 717 (2000), the panel held that Oregon does not have a compelling interest in protecting individuals’ conversational privacy from other individuals’ protected speech in places open to the public, even if that protected speech consists of creating audio or visual recordings of other people. The panel further determined that section 165.540(1)(c) burdens more speech than is necessary to achieve its stated interest and there were other ways for Oregon to achieve its interests of protecting conversational privacy. Finally, addressing the dissent, the panel determined that severing the ex