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….
Animal Legal Defense Fund v. Wasden (9th Cir. 2018) guides our analysis. After holding that the creation of audio and video recordings was speech entitled to full First Amendment protection, Wasden held that the Idaho statute at issue in that case, which required the facility owner's consent to make unannounced recordings of "the conduct of an agricultural production facility's operations," was "an 'obvious' example of a content-based regulation of speech because it 'defin[es] regulated speech by particular subject matter.'"
We gave two reasons for this conclusion. First, the statute drew "a distinction 'on its face' regarding the message the speaker conveys." Specifically, it "would permit filming a vineyard's art collection but not the winemaking operation." "Likewise, a videographer could record an after-hours birthday party among co-workers, a farmer's antique car collection, or a historic maple tree but not the animal abuse, feedlot operation, or slaughterhouse conditions." Second, we reasoned that "only by viewing the recording can the [state] authorities make a determination about criminal liability" because the application of the exception "explicitly pivots on the content of the recording."
