An excerpt from yesterday's en banc decision, written by Judge Morgan Christen, in Project Veritas v. Schmidt (reversing the July 2023 panel decision); the full opinions are over 20,000 words long, so this just gives a flavor of the analysis:
Oregon's conversational privacy statute prohibits unannounced audio-only recordings of oral communications between two or more persons, and the audio portion of audiovisual recordings of oral communications. It does not address video-only recordings or photographs.
Oregon's general prohibition on unannounced recordings of face-to-face conversations has several exceptions, but Project Veritas focuses its challenge on two of them. The first, the felony exception, allows a person to "record[ ] a conversation during a felony that endangers human life." … The second, the law enforcement exception, allows a person to "record[ ] a conversation in which a law enforcement officer is a participant" if certain conditions are met. The recording must: (1) be "made while the officer is performing official duties"; (2) be "made openly and in plain view of the participants in the conversation"; (3) capture a conversation that is "audible to the person by normal unaided hearing"; and (4) be made from "a place where the person lawfully may be." …
The court concluded that the statute "regulates speech protected by the First Amendment":
