[00:00:34] Speaker 05:
Good afternoon, and welcome all to the Nakamura courthouse here in Seattle.

[00:00:40] Speaker 05:
It's a pleasure to be here.

[00:00:41] Speaker 05:
This is the time set for the case of Project Veritas versus Michael Schmidt.

[00:00:49] Speaker 05:
So if counsel are ready to proceed, you may come forward.

[00:01:14] Speaker 10:
Chief Judge Merguia, may it please the court.

[00:01:16] Speaker 10:
My name is Benjamin Barr.

[00:01:17] Speaker 10:
I represent the Project Veritas Parties this afternoon.

[00:01:22] Speaker 10:
And I'd like to reserve three minutes for rebuttal.

[00:01:25] Speaker 10:
Before we wade into rather deep First Amendment waters, I want this court to consider three circumstances.

[00:01:33] Speaker 10:
I can't breathe.

[00:01:35] Speaker 10:
I can't breathe.

[00:01:38] Speaker 10:
Those, of course, were the words issued by Eric Gardner in 2014, caught by a passerby with a cell phone.

[00:01:47] Speaker 10:
His altercation and eventual death from the police led to national protests and call for police reform.

[00:01:55] Speaker 10:
Or this year, even this month.

[00:01:59] Speaker 10:
Amateur activist Lauren Windsor, who captured Justice Alito at the US Supreme Court Historical Society, purportedly agreeing that America should return to a place of more godliness.

[00:02:11] Speaker 10:
And who can forget this blockbuster?

[00:02:14] Speaker 10:
You know, I'm automatically attracted to beautiful.

[00:02:17] Speaker 10:
I just start kissing them.

[00:02:19] Speaker 10:
It's like a magnet.

[00:02:20] Speaker 10:
Just kiss.

[00:02:21] Speaker 10:
I don't even wait.

[00:02:21] Speaker 10:
And when you're a star, they let you do it.

[00:02:24] Speaker 10:
You can do anything.

[00:02:26] Speaker 10:
The Project Veritas party submit that these three examples, as well as the record built below, demonstrate that a journalist's choice about who to record and how to do it implicate important First Amendment concerns.

[00:02:40] Speaker 10:
These are items of expressive individual deliberation.

[00:02:43] Speaker 10:
And it's what separates government curated journalism from real journalism.

[00:02:49] Speaker 10:
Now, we have two important questions from the court.

[00:02:51] Speaker 10:
I'd like to wade into both the scope of the law that's under review, as well as what the Project Veritas parties do, so that I can better answer those two questions.

[00:03:01] Speaker 10:
Oregon law is an outlier nationally, unlike 39 states that allow you to freely record the conversations to which your party, so-called one-party consent states, or the eight states, nine states, sorry, that allow you to have some expectation of privacy and balanced speech rights.

[00:03:20] Speaker 10:
Oregon requires that anyone being recorded must specifically inform those individuals.

[00:03:25] Speaker 10:
That is, there must be an announcement.

[00:03:28] Speaker 10:
Simply having a device in open presence does not satisfy the law.

[00:03:33] Speaker 10:
Now there are curious exemptions to the law.

[00:03:36] Speaker 10:
The first exemption that's problematic is that no announcement is required to be given when police officers performing their duties in public are being recorded.

[00:03:46] Speaker 10:
Second, any conversation during which a felony endangering human life occurs need not provide any notice.

[00:03:54] Speaker 10:
Now, the Project Veritas parties are national leaders in undercover journalism.

[00:03:59] Speaker 10:
Their work has led to settlement agreements at the Federal Election Commission, demonstrating violation of federal election law by presidential campaigns, accepting illegal foreign national contributions.

[00:04:11] Speaker 10:
Their more recent work has demonstrated biases and discrimination in the educational hiring process.

[00:04:18] Speaker 10:
And similar to the brief submitted by Amici here from animal rights organizations,

[00:04:22] Speaker 10:
We would think of this as being otherwise high-value speech at the zenith of the First Amendment.

[00:04:28] Speaker 11:
Council, you've brought a facial challenge, yes?

[00:04:30] Speaker 10:
Yes, Your Honor, we have.

[00:04:31] Speaker 10:
And as applied, but facial is the primary focus.

[00:04:34] Speaker 11:
And that was the focus of the now vacated panel decision, right?

[00:04:37] Speaker 11:
Yes, Your Honor.

[00:04:38] Speaker 11:
And so part of your challenge would be and a claim that

[00:04:45] Speaker 11:
It is expressive First Amendment conduct.

[00:04:48] Speaker 11:
You're in a restaurant.

[00:04:49] Speaker 11:
You're chatting with the couple next door.

[00:04:51] Speaker 11:
You get to secretly push a button recording that conversation.

[00:04:55] Speaker 11:
That's covered by the statute, right?

[00:04:57] Speaker 11:
Yes.

[00:04:58] Speaker 11:
And you have a First Amendment right.

[00:05:00] Speaker 11:
You believe to do that.

[00:05:01] Speaker 11:
And that's the type of expressive conduct the founders intended to protect with Congress shall make no law, et cetera, et cetera, et cetera, about the freedom of speech.

[00:05:11] Speaker 10:
Yeah, it's about the First Amendment catching up with technology.

[00:05:15] Speaker 10:
Just as a reporter has the ability to write down in his journalist notepad what's occurring in open public space, so too with today's technology.

[00:05:25] Speaker 10:
Do journalists, concerned moms, Black Lives Matter activists have a similar ability?

[00:05:31] Speaker 11:
Similarly, you're in the park, you're chatting with a mom and her kids.

[00:05:35] Speaker 11:
You get to push the button.

[00:05:37] Speaker 11:
record them and that that is expressive protected First Amendment conduct.

[00:05:43] Speaker 10:
Absolutely.

[00:05:45] Speaker 06:
So I have a related question because I can't tell from your briefing whether it's your position that private conversations can't take place in public.

[00:05:52] Speaker 10:
Oh, no, that's not our position.

[00:05:54] Speaker 10:
There are certainly nine states that provide indicia of a reasonable expectation of privacy about how to figure that out.

[00:06:03] Speaker 10:
So in California, for example, one, we're in the park with family, and there's a birthday gathering going on, and someone says, hey, I got something to tell you.

[00:06:13] Speaker 10:
come on over here and we remove ourselves from a crowd, we remove ourselves from third parties, and then we whisper, those would be indicia of a privacy concern.

[00:06:23] Speaker 10:
And so there are states that do that correctly, we think.

[00:06:26] Speaker 10:
There are also provisions that already exist in Oregon law that guard for real privacy interests.

[00:06:32] Speaker 10:
And part of this argument is exactly focusing on what privacy means.

[00:06:38] Speaker 10:
I think it's a very important question that we address head on because we can go back to 1890 when Warren and Brandeis wrote a right to privacy that gave rise to our regular tort that we recognize invasion of privacy.

[00:06:52] Speaker 10:
where it was recognized that news gathering and commenting about items occurring in public wouldn't be swept up in it.

[00:06:58] Speaker 10:
We can look to what these other states do by incorporating a reasonable expectation of privacy that comes out of Fourth Amendment jurisprudence, USVCATS, and its corollary rule is that which you expose to others in public can in no way be deemed private.

[00:07:15] Speaker 10:
We have bounds about this.

[00:07:16] Speaker 03:
Mr. Barr, I guess in your over-breath challenge, though, the facial challenge, I think under the First Amendment, it has to be over the protected speech that's prohibited by the statute is over-broadened in relation to, substantial over-broadened in relation to its plainly legitimate sweep.

[00:07:33] Speaker 03:
So you're saying that the plainly legitimate speech that's involved here is only

[00:07:42] Speaker 03:
some subset, a minority of the speech that is prohibited by the statute where there's some affirmative indication of privacy, no matter the context.

[00:07:51] Speaker 10:
We're saying that a whole host of newsworthy events occur everywhere in Oregon, from a young lady wearing a jihab crossing a street, and the idiot next to you starts screaming racial epithets.

[00:08:07] Speaker 10:
And once you tell him that you're recording, he stops shouting.

[00:08:12] Speaker 10:
And you certainly probably can't even reach the lady on the other side of the street to be able to get this.

[00:08:18] Speaker 03:
or or the example cited by the amici being able to borrow all those exam is not the denominator here in terms of the sweep of the statute every to pick up on judge christian's point every conversation between two persons sure in public church and and your view is that uh... the overbought of the statute is substantial in relation to uh... so almost all of those

[00:08:47] Speaker 03:
conversations are not private, First Amendment protected.

[00:08:53] Speaker 10:
We're talking about the vast majority.

[00:08:55] Speaker 10:
And we can look to, you know, the last time... Was that a yes?

[00:09:00] Speaker 10:
Yes, it was a yes.

[00:09:01] Speaker 10:
The last time the Supreme Court really wrestled with privacy concerns versus free speech concerns was in the blockbuster Time v. Hill with

[00:09:11] Speaker 10:
no less than Richard Nixon failing to persuade the government, the Supreme Court, on behalf of privacy interests.

[00:09:19] Speaker 10:
And in concluding that, the First Amendment won out there, and they had re-argument, just as we're having re-argument today, in concluding that the First Amendment did win out there, they said, you know, a concomitant part of

[00:09:32] Speaker 10:
living in public is exposure, just as the Fourth Amendment says, exposure of self to others.

[00:09:39] Speaker 10:
And in a nation that values free speech, we put our thumb, we prefer news gathering and speech.

[00:09:45] Speaker 10:
And so we don't live in a society where you generally have to be warned that you're going to be photographed when you're in a park.

[00:09:52] Speaker 10:
If I'm out at a tourist area,

[00:09:54] Speaker 06:
Can I forgive me for interrupting, but you've done this is another sort of fundamental question because your brief often strays into talking about filming in public.

[00:10:02] Speaker 06:
And is that another premise that we need to clarify?

[00:10:07] Speaker 06:
Are you claiming that this statute sweeps in more than just oral communications?

[00:10:10] Speaker 10:
No, it triggers only oral communications, but most recording is done in an audio-visual manner, so it necessarily implicates both.

[00:10:19] Speaker 10:
So when I say filming, it's just an easy offhand way to refer to the whole product.

[00:10:25] Speaker 06:
But we're talking about audio recording.

[00:10:26] Speaker 10:
Wait, yes.

[00:10:26] Speaker 10:
So the scope of Oregon law, Judge Christian, is, you're accurate, is only related to audio conversations.

[00:10:34] Speaker 02:
So you concede that the statute would not apply to a silent video recording?

[00:10:38] Speaker 10:
That is correct.

[00:10:39] Speaker 10:
Right.

[00:10:40] Speaker 10:
And so the fact of the matter is, just going back on the earlier theme, if I'm out at a tourist area, someone might paint me.

[00:10:49] Speaker 10:
We don't live in a society where notice or warning has to be given about that.

[00:10:54] Speaker 10:
If I'm at a busy intersection in a major city, the news might catch me.

[00:11:00] Speaker 10:
And we can look to the common law of what privacy means to figure out where government is at its appropriate level in terms of-

[00:11:09] Speaker 04:
I have a question about that.

[00:11:12] Speaker 04:
In your briefing, it seems as though today you're talking mostly about the government's

[00:11:19] Speaker 04:
interest in protecting the privacy rights of its citizens.

[00:11:24] Speaker 04:
And I think Oregon expressed another interest as well.

[00:11:27] Speaker 04:
They talked about protecting the interests of its citizens and just being aware that they're being recorded.

[00:11:35] Speaker 04:
Isn't that also a substantial governmental interest at stake here?

[00:11:41] Speaker 04:
And you don't seem to be addressing it.

[00:11:44] Speaker 10:
Oh, I'd like to address it.

[00:11:46] Speaker 10:
Yes, please, Your Honor.

[00:11:47] Speaker 10:
Because I think we addressed it in the briefing by trying to draw an analogy to Buckley v. Baleo.

[00:11:54] Speaker 10:
And so if Oregon's argument is to state that they wish to make it more comfortable for others to speak,

[00:12:02] Speaker 10:
in public by suppressing the speech rights of others that is entirely foreign to the First Amendment.

[00:12:11] Speaker 10:
One can't suppress certain First Amendment activities to bolster others.

[00:12:14] Speaker 03:
Mr. Barr, to take Buckley, this is a disclosure requirement, simply saying, I am recording you.

[00:12:20] Speaker 03:
It's not consent.

[00:12:21] Speaker 03:
And Buckley itself subjects that to intermediate scrutiny.

[00:12:24] Speaker 03:
So why don't we do that here?

[00:12:26] Speaker 10:
Because the damage here in terms of being able to report is more severe, the terms of the disclosure is more severe than what occurs in the instance of campaign finance law.

[00:12:39] Speaker 10:
Not all campaign finance disclosure cases are upheld, a majority of them are under intermediate scrutiny.

[00:12:45] Speaker 10:
But here, the type of injury that we're thinking about is, if we think about Upton Sinclair, the famous muckraker back in the early 1900s, going into those food packing plants, getting ready to write The Jungle.

[00:12:56] Speaker 10:
And we don't have portable recording technology at the time.

[00:12:59] Speaker 10:
So the correct analogy would be to say, every time having the law in place that says, every time the boss says, we have a certain amount of rotten food going off, and I want to write that in the journal, I have to give notice to my boss, I'm writing down,

[00:13:12] Speaker 10:
that we have 20 pounds of rotten flesh going out.

[00:13:16] Speaker 10:
Boss, I'm writing down.

[00:13:17] Speaker 10:
Those stories would never be had.

[00:13:20] Speaker 06:
Well, they were had.

[00:13:21] Speaker 06:
There's quite a history of very successful investigative journalism in this country that didn't rely on hidden gadgets.

[00:13:28] Speaker 10:
And if the law required him to give notice, we would never have that today, Judge Christian.

[00:13:33] Speaker 10:
The analogous provision today is the iPhone, the secret recording device.

[00:13:39] Speaker 06:
Why not?

[00:13:39] Speaker 06:
Why can't investigative reporters simply interview people, make their observations, and report on what they saw or heard?

[00:13:45] Speaker 10:
because it destroys the candidness and truthfulness of the moment.

[00:13:48] Speaker 10:
No one is going to believe about the murder of George Floyd unless they actually see it.

[00:13:54] Speaker 04:
But that would fall within an exception that's in the statute, wouldn't it?

[00:13:59] Speaker 10:
Yeah, that would.

[00:13:59] Speaker 10:
But there's a whole host of important information otherwise.

[00:14:02] Speaker 10:
The First, Third, and Seventh Circuits all agree that audiovisual recordings provide the most exceptional and important way to preserve evidence to be able to demonstrate that to the public.

[00:14:14] Speaker 07:
But there are other, you know, I think as I understand the statute has other exceptions for let's say a public demonstration or a public speaker.

[00:14:21] Speaker 07:
And so that's not covered under what's being challenged here either.

[00:14:25] Speaker 07:
This really seems to just be more narrowly focused on conversational privacy between two individuals in public and whether someone has that right to record it without notice.

[00:14:36] Speaker 10:
It's difficult to imagine this as conversational privacy.

[00:14:40] Speaker 10:
These are floating privacy bubbles of some sort.

[00:14:43] Speaker 10:
An argument between Antifa member and a Proud Boy member on the streets in Portland is in no way private, yet notice has to be given to them.

[00:14:52] Speaker 06:
Can I follow up on that?

[00:14:53] Speaker 06:
Because your briefing says several places primarily your reporters intended to record in public, but not exclusively.

[00:14:59] Speaker 06:
And today you've only talked about recording in public.

[00:15:02] Speaker 10:
Right.

[00:15:03] Speaker 10:
And so I think it's difficult to imagine the full scope.

[00:15:08] Speaker 10:
But as for what we pled in the court below, the recordings were all demonstrated to be in public.

[00:15:14] Speaker 10:
So for the public records advocate, it was in open air cafes and on streets and in public parks.

[00:15:21] Speaker 10:
And for doing work recording the protesters and police, that was either at protests or in areas surrounding it to be able to get candid valuable information.

[00:15:32] Speaker 06:
Just to be clear, my understanding is that your position is that your client ought to be able to make these kinds of unnoticed recordings also in private areas, not be limited to public areas.

[00:15:45] Speaker 06:
That's what your books say.

[00:15:46] Speaker 10:
Well, yeah.

[00:15:47] Speaker 10:
I don't know.

[00:15:49] Speaker 10:
Part of it is the difficulty in knowing what Oregon means by private areas.

[00:15:55] Speaker 10:
We're certainly not alleging any right to eavesdrop.

[00:15:57] Speaker 10:
Oregon has an eavesdropping provision.

[00:16:00] Speaker 10:
affirmatively stated that in our proceedings.

[00:16:04] Speaker 10:
And so I guess we really have to hone in on what a private area is.

[00:16:09] Speaker 10:
I can tell you from experience and from compliance work with the client that in states that have reasonable expectation of privacy provisions, it doesn't violate those laws and doesn't record in truly private circumstances.

[00:16:21] Speaker 10:
But what Oregon says is private, a loud argument between two radical protesters in a park, yeah, it wants to record there.

[00:16:30] Speaker 10:
Now, there's been a lot of briefing here and a lot of discussion about Wasden, which I think is an important First Amendment decision by this court in 2018, striking down, of course, parts of Idaho's ag-gag law.

[00:16:45] Speaker 10:
But I think if you want to answer the first question that was put forward to us,

[00:16:48] Speaker 10:
The real golden gem that you guys produced in 2010, because it's doctrinally pure, is Anderson v. City of Hermosa Beach.

[00:16:57] Speaker 10:
Now, Wasdon's terrific.

[00:16:59] Speaker 10:
It shows you the work that investigative journalism does.

[00:17:02] Speaker 10:
It shines a light on big ag, and it shows the abuses that happen to animals.

[00:17:07] Speaker 10:
It's heartfelt, it's compassionate, and it's terrific.

[00:17:11] Speaker 10:
But the analysis is a little short on First Amendment doctrine.

[00:17:17] Speaker 10:
But once we go back to Anderson, Anderson looks to Spence, I think correctly, from the Supreme Court.

[00:17:23] Speaker 10:
And Spence, of course, is the case where there's a superimposed peace symbol on an American flag.

[00:17:29] Speaker 10:
And Anderson says, well, look, we're looking at this tattoo ban by the city of Hermosa Beach.

[00:17:35] Speaker 10:
And we're going to look at the different steps.

[00:17:37] Speaker 10:
We put a needle into an arm, probably not expressive.

[00:17:40] Speaker 10:
We're going to put some ink in there, maybe.

[00:17:43] Speaker 10:
The business of tattooing, not expressive.

[00:17:45] Speaker 10:
But when we look at the end product, that magic mushroom from the Grateful Dead, well, that looks like art protected under Burston under the First Amendment.

[00:17:54] Speaker 10:
That seems like it.

[00:17:56] Speaker 10:
And what we don't want to do,

[00:17:58] Speaker 10:
the Ninth Circuit reasons, per spins, is to look at individual steps that lead up to a pure expression and then disaggregate them because it makes it too easy for government then to be able to regulate.

[00:18:11] Speaker 10:
Now, imagine if we had a different rule, if that had gone a different way.

[00:18:14] Speaker 10:
Government would be able to place a tax on ink for newspapers, but the Supreme Court said no to that in Minneapolis Star.

[00:18:23] Speaker 10:
It would be able to ban contributions and limit independent expenditures, but the Supreme Court said no to that in Buckley in Citizens United.

[00:18:30] Speaker 06:
Council, I think your point is well taken, but if I can jump in here.

[00:18:33] Speaker 06:
I think we understand that.

[00:18:36] Speaker 06:
I think it's a point that is made clearly.

[00:18:38] Speaker 06:
in the briefing here, but you're talking about something different.

[00:18:41] Speaker 06:
You're not talking just about using a recorder and likening it to the typewriter that produces a book or the ink that produces a newspaper.

[00:18:49] Speaker 06:
You're talking about surreptitious recording, and that layers, it seems to me, an entirely different aspect of complexity here that you're not acknowledging.

[00:19:00] Speaker 06:
And I don't think your brief, your supplemental brief, if I could just ask you this question, then I'll get out of your way to answer it,

[00:19:06] Speaker 06:
You lean heavily on Boston, and understandably so, but I don't think you acknowledge anywhere city of Austin.

[00:19:15] Speaker 10:
Sure.

[00:19:15] Speaker 10:
So those are two big questions, and I'll dissect those if I may.

[00:19:21] Speaker 10:
On the first half of this, it's important to notice the scope of Oregon law.

[00:19:27] Speaker 10:
Oregon law prohibits unannounced recording.

[00:19:30] Speaker 10:
And when we challenge it, both is to be able to do it surreptitiously or just have a cell phone out on the table, as is common in a lot of recordings done there.

[00:19:39] Speaker 10:
And this isn't just about Project Veritas going in and got to that on video.

[00:19:45] Speaker 10:
This is about trends like it's happening nationwide.

[00:19:48] Speaker 10:
Moms who have children coming home from school that are disabled, autistic, and they give them recording devices to be able to provide evidence that are they being beat up and who did it.

[00:19:58] Speaker 10:
And they are being beat up, and this is producing great information.

[00:20:03] Speaker 10:
It's about the right of the female secretary who's being sexually harassed by her boss

[00:20:08] Speaker 10:
to be able to record that in an open lobby, and no one's going to believe her until they see that.

[00:20:13] Speaker 03:
Mr. Barr, I guess just to focus the analysis, I think, at least I think Judge Christen and I may be trying to get at it.

[00:20:21] Speaker 03:
So again, assume that there's something that triggers

[00:20:26] Speaker 03:
speech clause scrutiny, how do you get to the content-based?

[00:20:30] Speaker 03:
How would this statute be content-based as opposed to a time, place, and manner restriction on the conduct of surreptitiously recording?

[00:20:41] Speaker 10:
Sure.

[00:20:41] Speaker 10:
And Judge Christen asked specifically about Austin.

[00:20:46] Speaker 10:
And so there's been some point of concern over exactly how strict the test is for content-based restrictions.

[00:20:53] Speaker 10:
I think that's a fair question.

[00:20:56] Speaker 10:
And of course, in Reed, we knew that differentiating between political and ideological signs for purposes of signs was a content-based restriction that was stricken.

[00:21:08] Speaker 10:
And in the city of Austin, off-premises, on-premises signs were deemed content neutral.

[00:21:14] Speaker 10:
Now, the Supreme Court says in Austin,

[00:21:17] Speaker 10:
There's a good reason for that.

[00:21:18] Speaker 10:
We have a history and tradition, which First Amendment case law respects, that when we're dealing with signs, especially with traffic concerns, we have to examine content.

[00:21:27] Speaker 10:
And if it's dealing with those situations, we're going to allow that to occur.

[00:21:32] Speaker 10:
We have more recently, just this last week, the Supreme Court decided Elster on trademark provisions and finds that to be content-based and upholds it because of tensions between property interests and free speech interests not relevant here.

[00:21:47] Speaker 10:
But does away simply with that, saying a government bureaucrat has to review an actual trademark application, look at a descriptive name, Trump Too Small was the one that had issue there, and decide whether it's in or whether it's out.

[00:22:03] Speaker 10:
And even Austin still says that courts have to pay attention to whether the law in question is targeting the underlying substantive message.

[00:22:13] Speaker 10:
And this comes back to the opening of oral argument.

[00:22:17] Speaker 10:
Where a journalist or a concerned mom points the lens of her camera, where she puts her microphone, how she does that, just as how a painter decides to brush his strokes, what subject he decides to do, whether he tells them about it or not, or a photographer captures candid moments in a park or stage moments matter dramatically.

[00:22:44] Speaker 10:
They are imbued with First Amendment concern and choices.

[00:22:48] Speaker 10:
If I choose to do a full stream of police accountability videos, hurrah, that's a good thing to do, that sends a particular message.

[00:22:57] Speaker 03:
Where does this statute then draw that content line?

[00:23:00] Speaker 03:
You've given us several examples.

[00:23:05] Speaker 03:
Noticed recording versus unnoticed recording, is that the content-based distinction?

[00:23:09] Speaker 03:
Because I don't think there's much for us to work on in terms of the content of the eventual publication, whatever that may be.

[00:23:16] Speaker 03:
Is that the line you draw, noticed versus unnoticed recording?

[00:23:19] Speaker 10:
The line is between noticed and unnoticed.

[00:23:21] Speaker 10:
So the law allows more generous recording provisions for the police.

[00:23:26] Speaker 10:
Representative Lou Frederick in 2015, who sponsored the amendment, said this brings trust and accountability to government.

[00:23:34] Speaker 10:
And in our polarized times, we need this more than ever.

[00:23:38] Speaker 10:
And so that's terrific, but that's sticking one toe in the water.

[00:23:42] Speaker 10:
We need the whole foot.

[00:23:43] Speaker 03:
Okay, but the police exception is not, it's not noticed or unnoticed.

[00:23:48] Speaker 03:
The police exception is subject to a different, it doesn't require specifically informing the person that you're recording.

[00:23:55] Speaker 03:
It just requires that the recording be open.

[00:23:57] Speaker 03:
So that doesn't seem to square up with a content-based distinction between the unnoticed recording and the implicitly noticed recording of police.

[00:24:11] Speaker 10:
I would respectfully disagree, Your Honor, because if I have to give notice to a public records advocate and I've befriended him at a Starbucks open-air cafe and I want to develop a relationship, as undercover reporters do, and solicit a story about this, they're unlikely to be able to share that information if they know that they're being recorded and they're being told.

[00:24:34] Speaker 10:
Just as a police officer is probably not so willing to commit abuse, kill someone,

[00:24:39] Speaker 10:
or engage in unlawful activity if you've told them you're recording.

[00:24:42] Speaker 10:
Now we've pledged in the court below that we wish to do both secret and just simply unannounced open recording.

[00:24:48] Speaker 10:
That's part of our complaint and our request for relief.

[00:24:51] Speaker 06:
If we could get you to focus on the question that my colleagues are trying to ask you.

[00:24:56] Speaker 06:
about how you get to content based here.

[00:24:58] Speaker 06:
It seems to me that what you're arguing is that the restriction, I think if I could summarize, I think your argument is that the statute allows people to openly record police officers in public but not other types of public officials or other people in public and that content you view as content restriction.

[00:25:16] Speaker 06:
Is that fair?

[00:25:17] Speaker 10:
Yes, because... So here's my question.

[00:25:19] Speaker 06:
The case law, in that body of case law, we have cases like Consolidated Edison, Simon & Schuster, Booz v. Berry.

[00:25:27] Speaker 06:
These are all discussed in the brief.

[00:25:29] Speaker 06:
Well, maybe not all of them quite.

[00:25:30] Speaker 06:
But I'm trying to figure out how your case is anything like those, where an entire swath, an entire subject matter is taken out of the marketplace.

[00:25:40] Speaker 10:
Well, it's two sets.

[00:25:42] Speaker 10:
It's right.

[00:25:42] Speaker 10:
It's both the police and then it's conversations during felonies and endangering human life.

[00:25:47] Speaker 10:
Those are both content triggers.

[00:25:49] Speaker 10:
And what the Supreme Court has been clear about is that even incidental burdens on First Amendment conduct are still noteworthy and still important for consideration.

[00:26:03] Speaker 06:
Can be, but the Supreme Court's very recently said just because there's an incidental burden on speech doesn't mean

[00:26:09] Speaker 06:
that a regulation is content-based.

[00:26:13] Speaker 10:
Right.

[00:26:13] Speaker 10:
So this here is, you know, if we agree that what a journalist chooses to write about, such as Miami Herald versus Tornillo, a matter of editorial and journalistic discretion, this should be every bit as much a point of First Amendment concern as it would be there.

[00:26:33] Speaker 10:
because I can choose all of these different particular subsets of government accountability or with animal rights activists, different forms of agricultural abuse.

[00:26:45] Speaker 10:
And that message that I convey is where I point the lens and where I put the microphone and how I do it.

[00:26:50] Speaker 10:
And government doesn't give marching orders to journalists to tell them.

[00:26:54] Speaker 06:
Could I ask it this way?

[00:26:54] Speaker 06:
What do you think is your strongest case law supporting the position that you think these exceptions are content-based, please?

[00:27:01] Speaker 10:
No, I think if you can turn a direct corollary to Wosden and say, look... Okay, so hold on.

[00:27:08] Speaker 06:
If you're relying on Wosden, forgive me for interrupting, but this is the question you keep not quite answering.

[00:27:12] Speaker 10:
I want to get there, Your Honor.

[00:27:14] Speaker 06:
I appreciate that.

[00:27:15] Speaker 06:
You're relying very heavily on Wosden.

[00:27:17] Speaker 06:
What about City of Austin?

[00:27:18] Speaker 06:
Is it your position that that doesn't change or undercut Reed?

[00:27:22] Speaker 06:
Reed, of course, is what Wosden relied upon.

[00:27:24] Speaker 10:
No city of Austin is a special consideration, and it says specifically these are signs We're dealing with signs, so we're going to give special latitude till we have to look at contents of signs And we look to tradition in history and so when we have a signed ordinance that comes up.

[00:27:40] Speaker 10:
We're going to give a little more birth there, but even just

[00:27:45] Speaker 10:
just this last week, Elster from the Supreme Court.

[00:27:49] Speaker 10:
We're looking at the communicative, the substantive message, right?

[00:27:52] Speaker 10:
Austin still says, Steve Austin still says, we have to pay special attention to is a particular message having a First Amendment burden being applied against it, having an injury applied against it.

[00:28:04] Speaker 10:
What about, sorry.

[00:28:06] Speaker 10:
Please, Your Honor, I see my time is just about up, so I'd like to hear your question.

[00:28:09] Speaker 05:
What about Porter, our case in Porter?

[00:28:11] Speaker 10:
If you would refresh me of the facts, and Porter.

[00:28:13] Speaker 05:
Well, it seems like the regulation that involved examining the context of the speech was nevertheless deemed content neutral because the challenge regulation applied even-handedly to all and did not single out certain kinds of speech or different treatment.

[00:28:34] Speaker 05:
That was our Ninth Circuit decision.

[00:28:37] Speaker 10:
I appreciate that.

[00:28:38] Speaker 10:
I'm not up to speed on it.

[00:28:40] Speaker 04:
That's the hogging case.

[00:28:43] Speaker 10:
From what you've just described, it's the lens of analysis.

[00:28:50] Speaker 10:
Journalistic choices on the street to be able to decide, am I going to film George Floyd?

[00:28:56] Speaker 10:
Am I going to film the public records advocate?

[00:28:59] Speaker 10:
That sends a message.

[00:29:00] Speaker 10:
And it sends a message to the public.

[00:29:02] Speaker 10:
And it has to be protected at the front end, otherwise we don't have protection on the other end.

[00:29:07] Speaker 04:
So let me ask you another question.

[00:29:09] Speaker 04:
This just puzzles me because maybe somewhere in state case law, this is defined, but is conversation defined anywhere in the statute or otherwise by state law?

[00:29:22] Speaker 10:
It is defined, if you give me a moment, it's the transmission between two or more persons of an oral communication that's not telecommunications or radio, includes communications occurring through video conferencing.

[00:29:36] Speaker 10:
That's Oregon revised statute 165.535.

[00:29:39] Speaker 10:
I see my time is beyond up.

[00:29:42] Speaker 10:
Otherwise, I would reserve my time for rebuttal unless you would like me to address a point.

[00:29:47] Speaker 05:
You can answer the question.

[00:29:48] Speaker 05:
You still have a minute and a half.

[00:29:50] Speaker 10:
Oh, I'm sorry.

[00:29:52] Speaker 10:
I thought it was up.

[00:29:53] Speaker 10:
Read the clock wrong.

[00:29:56] Speaker 10:
OK.

[00:29:57] Speaker 10:
So it's a pretty wide-reaching.

[00:29:59] Speaker 04:
Are you saying that that definition is over broad?

[00:30:03] Speaker 04:
I mean, is that your argument, that it applies more broadly than what we might ordinarily understand the word conversation to mean?

[00:30:12] Speaker 10:
Well, I think that that's part of the argument.

[00:30:14] Speaker 10:
It certainly gives more breath to it.

[00:30:16] Speaker 10:
But simply the fact that government intrudes and requires someone to carry a message and destroys the spontaneous nature of that ability to get the message out is what's at stake here.

[00:30:29] Speaker 10:
And this is a law that's unlike anything else in the nation.

[00:30:33] Speaker 10:
States have worked on balancing hard true privacy interests, borrowing from Fourth Amendment jurisprudence.

[00:30:40] Speaker 10:
It can be done here.

[00:30:41] Speaker 10:
And I think that we're on good grounds to be able to say that each of these individual steps are protected by the First Amendment, and that by deciding by government giving instructions about what's easier to film, and what's harder to film, and by removing certain content from ultimate publication, that does real injury to the First Amendment.

[00:31:00] Speaker 10:
And I think that you should reinstate the opinion below.

[00:31:04] Speaker 10:
Thank you for your time today, Your Honors.

[00:31:18] Speaker 08:
May it please the court, Benjamin Gutman appearing on behalf of the appellees.

[00:31:22] Speaker 08:
The First Amendment doesn't protect the right to secretly record someone else's speech.

[00:31:27] Speaker 08:
Oregon's ban is a content-neutral regulation of the manner of making recordings.

[00:31:32] Speaker 02:
This goes quite a bit beyond secret.

[00:31:35] Speaker 02:
I mean, we've talked a lot about secret and surreptitious, but this applies to someone who, in public, sees an argument between people on the street and pulls out a phone.

[00:31:45] Speaker 02:
They would violate this statute, a criminal statute, correct?

[00:31:48] Speaker 08:
It might, depending on the circumstances.

[00:31:53] Speaker 02:
I assume it's not a cop performing official duties, which is one of your exceptions, but it's just two people having a loud political conversation, whatever conversation, on the street and someone takes out a cell phone.

[00:32:05] Speaker 02:
They're a criminal in the state of Oregon.

[00:32:07] Speaker 02:
if they haven't if the uh... participants in the conversation are not specifically informed correct now that if i should also even though they're out in public they have no expectation of privacy they're shouting to the earshot of everyone around in public and they have a privacy right against the recording of that conversation what they have is a right to uh...

[00:32:30] Speaker 08:
not to speak in a way that creates a record for other people to listen to.

[00:32:35] Speaker 02:
Maybe they could go off privately and whisper silently.

[00:32:38] Speaker 02:
If they are imposing their voice to the hearing of people who are in public where they are entitled to be, why can't people make a record of what they are being subjected to, what they hear?

[00:32:51] Speaker 08:
Well, and in some circumstances, they can.

[00:32:53] Speaker 08:
If it's a public event, then open recording is allowed under the statute.

[00:32:57] Speaker 08:
But I think the point is that- Where does it say that?

[00:33:02] Speaker 04:
Because I'm questioning whether what Judge Collins is describing is a conversation within the meaning of this act.

[00:33:11] Speaker 08:
Well, it might be or it might not be, depending on exactly what was happening.

[00:33:15] Speaker 08:
But I'm referring to subsection six of section 165.540, which allows unconcealed recording of public or semi-public meetings.

[00:33:27] Speaker 08:
But then it includes a long list of things that fall within that, including rallies, sporting, and other events.

[00:33:34] Speaker 08:
So depending on the circumstances, that might apply.

[00:33:38] Speaker 04:
I think what Judge Collins is talking about is

[00:33:40] Speaker 04:
Some of the examples that your opposing counsel gave were just two people who see each other dressed in symbolizing certain tense issues of the day and just start screaming at each other in public.

[00:33:58] Speaker 08:
Right, I think that would probably be a conversation and would probably not fall within the, you know, a public or semi-public meeting.

[00:34:06] Speaker 08:
And so the requirement that they be specifically informed applies.

[00:34:10] Speaker 08:
And the reason for that is that I think there are two different aspects of privacy that we sometimes are conflating here.

[00:34:16] Speaker 08:
One is the privacy of not sharing information with somebody beyond the intended recipient.

[00:34:23] Speaker 08:
But the other is the aspect of privacy that involves individual autonomy to decide what audience you're going to address.

[00:34:29] Speaker 08:
And there is a difference in a certain manner and doing it in a way.

[00:34:33] Speaker 11:
I pose to your friend that they're all so challenging if you want to record that and that's part of what they want declared unconstitutional, right?

[00:34:45] Speaker 08:
correct and so in addition to two people yelling in public it's also you're conversing with someone quietly identify you know some some instances even discrete categories that might be problematic that doesn't necessarily mean that the statute is facially unconstitutional.

[00:35:03] Speaker 11:
I think you noted in your brief that the standard has to be

[00:35:07] Speaker 11:
for them to win facially there has to be a lopsided ratio in their favor between what is protected and what isn't protected.

[00:35:15] Speaker 08:
Correct.

[00:35:16] Speaker 08:
That's what United States versus Hanson says and that in the absence of that sort of lopsided ratio.

[00:35:21] Speaker 02:
Is it, I mean in a modern urban setting where there's a lot of people around walking down the street I guess you can't take out a cell phone because it's going to be impossible not to pick up conversation of people passing by

[00:35:35] Speaker 02:
One of the amicus briefs talked about, you know, taking videos of people, you know, rafting, and it's impossible not to capture the conversations that happen as people pass through the scene.

[00:35:45] Speaker 08:
Well, you can capture the video without audio, which is one way that statute does allow that.

[00:35:50] Speaker 08:
And I do think, I mean, that may be something that you have to...

[00:35:54] Speaker 02:
In the state of Oregon, you can only do silent videos in urban areas where people are talking down the street.

[00:36:01] Speaker 02:
Even though people are walking in public, talking in public, you can't video with audio.

[00:36:06] Speaker 08:
I don't think that's true as a categorical rule, but I certainly think that will be true in some circumstances.

[00:36:11] Speaker 02:
Again, if it's... If people pass by and one is speaking to the other, that's a conversation, and they're not within an exception, and you didn't announce it.

[00:36:20] Speaker 02:
And so taking a video of just an open public scene with people walking by as illegal in the state of Oregon, you think that it's consistent with the First Amendment?

[00:36:28] Speaker 08:
Yes.

[00:36:29] Speaker 08:
And if you think that that's a problem under the First Amendment, that's a very specific set of circumstances that doesn't invalidate the rest of the legitimate sweep of the statutes.

[00:36:37] Speaker 02:
The problem is that you keep talking about surreptitious and privacy where you don't want other people to hear, but that's not the statute you've written.

[00:36:46] Speaker 02:
You have a statute that just sweeps in everything with just unannounced, and you could focus it more specifically on whether it's an expectation that other people are not hearing the conversation or some expectation of privacy.

[00:37:01] Speaker 02:
You could tailor this better, but it's not here.

[00:37:05] Speaker 08:
Well, I think it could be tailored more closely to protect the privacy interest in not having other people hear the conversation, but it's very well tailored to the interest that I think is also a privacy interest, but you could call it an autonomy interest, of not creating speech.

[00:37:21] Speaker 08:
When somebody is recording someone else's speech,

[00:37:25] Speaker 08:
the recording that's being created is a form of speech that involves the speech of the person who is speaking and they have a right to know if they, they certainly have an interest in knowing if they are contributing to the creation of that speech and that's what this law is tailored to protect.

[00:37:42] Speaker 08:
Now if you incidentally capture, you know, somebody else... Why equal it to video?

[00:37:47] Speaker 02:
So could you then, in your view, have a statute that forbids taking video of people walking by because they didn't consent to have you make art of them?

[00:37:55] Speaker 08:
Well, I don't think it would involve the same set of interests.

[00:38:01] Speaker 08:
There's a distinct interest in the freedom not to speak, which I think is implicated by the statute and wouldn't be implicated by a statute that regulated video.

[00:38:12] Speaker 06:
Circuits have recognized this, right?

[00:38:14] Speaker 06:
Several circuits have recognized that we have a different interest when we're talking about our image in public, if we go out into public, that there isn't an expectation of privacy to be photographed.

[00:38:25] Speaker 06:
because we're out there.

[00:38:27] Speaker 06:
Quite different than our speech.

[00:38:29] Speaker 08:
Correct.

[00:38:30] Speaker 08:
And as I say, it wouldn't implicate the freedom not to speak that I think is really at the core of what this statute is trying to protect.

[00:38:37] Speaker 11:
Council, do I have the center of the statute right?

[00:38:40] Speaker 11:
It requires willful conduct?

[00:38:43] Speaker 08:
I think it probably requires knowing conduct.

[00:38:47] Speaker 08:
And there's no mental state written into this statute.

[00:38:51] Speaker 08:
Oregon law generally requires mental state for all criminal offenses.

[00:38:55] Speaker 08:
This is in Chapter 161 of the Oregon Revive Statutes.

[00:38:58] Speaker 08:
It's 161.095 and 161.115 and a few other ones around that.

[00:39:04] Speaker 08:
But essentially what those say is that when a statute doesn't specify a mental state, a mental state is still required.

[00:39:10] Speaker 08:
And case law essentially says that it turns on whether it's a conduct element or a circumstance element.

[00:39:17] Speaker 08:
The willfulness is when you're not a party.

[00:39:18] Speaker 11:
in 165.543.

[00:39:23] Speaker 08:
Yes, yes.

[00:39:25] Speaker 08:
So I have that wrong.

[00:39:26] Speaker 08:
OK.

[00:39:27] Speaker 08:
But 165, 541 sub C, which is the section we're talking about, doesn't specify a mental state, but I think the mental state would be knowing under Oregon law that you knowingly are obtaining another conversation.

[00:39:39] Speaker 08:
And so if you incidentally, you were taking a video of your kids in a park and you didn't realize that there was somebody else having a conversation nearby and you incidentally captured that, I don't think that would be a crime.

[00:39:51] Speaker 03:
Mr. Cutman, I wonder if you could help me sort out some of the facial versus as-applied challenges.

[00:39:57] Speaker 03:
Your friend didn't press the as-applied, but as I'm looking at the complaint here, I see six different as-applied challenge

[00:40:07] Speaker 03:
challenges, situations.

[00:40:09] Speaker 03:
I think five of the six all involve Project Veritas being a party to the conversation.

[00:40:15] Speaker 03:
And it's unclear to me in terms of how this works, I guess, what the scope of when it becomes where the eavesdropping line is, if they're not a party.

[00:40:26] Speaker 03:
So almost all of the examples we've talked about today have been instances where the recorder is not a party, but we wouldn't

[00:40:35] Speaker 03:
at least consider the heartland of Project Veritas's complaint.

[00:40:39] Speaker 03:
So what's the line there between what's covered by this statute and where eavesdropping begins?

[00:40:45] Speaker 08:
So this statute applies equally to both.

[00:40:47] Speaker 08:
I mean, it's obtaining or attempting to obtain the whole or part of any conversation by means of a device if not all the participants are specifically informed.

[00:40:58] Speaker 08:
So it applies to eavesdropping.

[00:41:00] Speaker 08:
It applies to participants to which the recorder is, conversations to which the recorder.

[00:41:06] Speaker 03:
And that would go to the facial challenge.

[00:41:07] Speaker 03:
Correct.

[00:41:08] Speaker 03:
But with respect to the as applied challenges, I think at paragraphs 28 and 29 of the complaint,

[00:41:13] Speaker 03:
almost all of the as-applied challenges involve Project Veritas as being a party to the conversation except for when Project Veritas was secretly recording interactions between the police and protesters.

[00:41:26] Speaker 08:
Yeah, there is though another statement in the complaint and I don't recall which paragraph it is where Project Veritas said they don't intend to

[00:41:34] Speaker 08:
they only intend to record their own conversations.

[00:41:37] Speaker 08:
So I know they give that example.

[00:41:39] Speaker 08:
I think the key point though with the complaint is that if you look at the prayer for relief, what you'll see is that whether it's labeled facial or as applied, they want the statute enjoined as to the organization.

[00:41:49] Speaker 08:
They are not, they have not targeted a specific set of activities that they are seeking relief for and they haven't shown that they have a really a right claim as to those.

[00:41:59] Speaker 03:
So what doctrine do we apply there?

[00:42:01] Speaker 03:
Are we applying the facial over-breath doctrine that requires substantial over-breath in relation to the statute's legitimate sweep?

[00:42:09] Speaker 03:
Yes.

[00:42:09] Speaker 03:
Okay.

[00:42:10] Speaker 03:
So that's with respect to the facial challenge.

[00:42:12] Speaker 03:
And I think you could take them at their word that essentially this is a facial challenge and that's what they're... Well, I ask that because they're as applied challenge and most of the complaint are about conversations to which they are the party which couldn't possibly satisfy a facial-over-breath challenge if the protected speech they're asserting are only conversations in which they're involved.

[00:42:34] Speaker 08:
I think that's probably true.

[00:42:36] Speaker 08:
You could look at the First Circuit's analysis in the Project Veritas versus Rollins case, which concluded that essentially that they didn't have a justiciable as applied claim because of the way they had pleaded it.

[00:42:51] Speaker 08:
And I think that would be the same here.

[00:42:53] Speaker 03:
Can I follow up with you briefly on the district court appeared to recognize some concessions that the state made with respect to the

[00:43:01] Speaker 03:
open but unnoticed recordings.

[00:43:05] Speaker 03:
And I think two of their challenges relate to that.

[00:43:08] Speaker 03:
One relates to, in both cases, if they're trying to interview either protesters or public officials and secret recordings is impractical, they say they also seek open but unnoticed recordings.

[00:43:20] Speaker 03:
Did the state concede that those would be covered by a broad reading of the public or semi-public meetings in 6A?

[00:43:27] Speaker 08:
I think the state did take a fairly broad view of what the public meetings would be.

[00:43:33] Speaker 08:
There's not a lot of case law on this.

[00:43:34] Speaker 08:
There are really hardly any prosecutions in that kind of scenario.

[00:43:39] Speaker 08:
So there's not a lot of case law about what that means.

[00:43:42] Speaker 08:
There is one case from the Oregon Court of Appeals

[00:43:46] Speaker 08:
I think it might be state versus Bechel, B-I-C-H, B-I-S-H-C-E-L, maybe, that says that a meeting is something more than a mere encounter.

[00:44:00] Speaker 08:
So I think if we have any guidance on what the line is between what's a public meeting and what's not, or a private meeting and what's not a meeting, it's the idea that a meeting, I guess, has some intentionality about coming together.

[00:44:13] Speaker 03:
For example, the 6A,

[00:44:16] Speaker 03:
So if project Veritas is at, and I think this may be an important bit to clarify the state's concession here, if project Veritas is at a protest and they're interviewing openly, not secretly, but openly, and this is also one of their claims,

[00:44:35] Speaker 03:
putting cell phones in people's faces and asking questions or even recording discussions between police and protestors.

[00:44:43] Speaker 03:
Would that be covered by the exception of public meetings?

[00:44:45] Speaker 08:
Yes.

[00:44:46] Speaker 03:
Yes.

[00:44:46] Speaker 08:
And in fact, they don't even have to put the cell phone in the face.

[00:44:49] Speaker 08:
For a public or semi-public event like a rally, it just requires that it be done in an unconcealed manner.

[00:44:55] Speaker 03:
OK.

[00:44:55] Speaker 03:
And then what about with respect to, I think, the example they gave is the public records advocate.

[00:45:01] Speaker 03:
If they are in a public place talking to the public records advocate with the phone out, would that be covered by the state's broad reading?

[00:45:15] Speaker 08:
It depends on, I'd need to know a few more facts.

[00:45:18] Speaker 08:
So, I mean, from what I understand from what my friend was describing,

[00:45:21] Speaker 08:
these might be meetings that were set up, you know, sort of befriending a public records advocate, inviting them out for a coffee at an open-air cafe.

[00:45:30] Speaker 08:
That would be, I think, at least a private meeting, which the statute says unconcealed recording is allowed as long as all the participants knew or should have known that they were being recorded.

[00:45:41] Speaker 07:
Could I ask you to follow up on some of your briefing that the state briefed about recordings are not inherently expressive conduct.

[00:45:50] Speaker 07:
I was having a hard time figuring out what sort of line you would draw in that regard.

[00:45:54] Speaker 07:
There's been much discussion about recording being a precursor to expressive conduct and that it's generally inextricably intertwined.

[00:46:04] Speaker 07:
But your point is that recording someone else's conversation

[00:46:08] Speaker 07:
isn't the same thing, unless it's imbued with some sort of expressiveness itself.

[00:46:15] Speaker 07:
So explain to me how you would draw that line between those two things.

[00:46:19] Speaker 08:
Well, to be fair, I don't think the line is very clear.

[00:46:21] Speaker 08:
The Supreme Court hasn't really given us a test, and the circuit decisions from around the country don't all necessarily... They sort of advert to First Amendment principles, but don't necessarily apply a particular test.

[00:46:34] Speaker 08:
But what I think we...

[00:46:36] Speaker 08:
What I think we were, the point that we were trying to make is that not, in that not all recordings are expressive conduct for purposes of the First Amendment is that, I mean, there can be recordings that because of the way they are made are inherently expressive because they're essentially a director, you know, like a movie director type thing where a person's making intentional choices about what to record and how to record it.

[00:47:00] Speaker 08:
and that that could be expressive conduct sort of in itself, and that there also may be a First Amendment right to record certain matters of great public interest, recording the police engaging in official conduct openly, for example.

[00:47:17] Speaker 08:
And really the point that we were trying to make was just that

[00:47:22] Speaker 08:
you know, even accepting that both of those categories of protected conduct exist, the statute still covers a great deal of conduct that wouldn't fall within anything like that, passively recording, passively seeking.

[00:47:35] Speaker 01:
Well, I appreciate your acknowledgement that there, we don't have a test on this issue and that perhaps, I think as you argue in your briefing, that they're, that they all,

[00:47:46] Speaker 01:
audio-visual recordings may not be expressive conduct that's protected under the First Amendment.

[00:47:50] Speaker 01:
What would you have this panel, this en banc panel of the court, do with this issue specifically?

[00:47:56] Speaker 01:
What test would you have us adopt and how exactly would we draw the lines so that, you know, obviously what this court decides on this issue will and can be used by litigants that come after you?

[00:48:12] Speaker 08:
So I think that the test that the court could adopt would be that the First Amendment is triggered if the recording itself involves expressive conduct.

[00:48:23] Speaker 08:
There's sufficient intentionality in the way that the recording is being made, artistic choices in the way that the recording is being made, that it qualifies as expressive conduct.

[00:48:36] Speaker 07:
What if there's intentionality?

[00:48:37] Speaker 07:
Let's say your friend on the other side mentioned investigative journalism.

[00:48:41] Speaker 07:
If there's an intentionality that the information gathering will lead to publication of that information, is that always covered in that case?

[00:48:48] Speaker 08:
I think it would normally be covered.

[00:48:53] Speaker 08:
But that would just say that we're then in, I would say, intermediate scrutiny land because we have a content neutral regulation of the manner of making those recordings.

[00:49:01] Speaker 08:
And so that's our primary argument.

[00:49:03] Speaker 08:
I mean, one thing that the court could do is simply assume that all or most of this is covered by the First Amendment.

[00:49:09] Speaker 01:
What Wasden did, I mean, and Wasden, I think, assumed without deciding that

[00:49:13] Speaker 01:
The recordings are expressive conduct than went straight to the analysis under that that would be fine with us here, too Well, is it your position that was done went too far and we should clarify I'm not sure if you're in response to judge to size question.

[00:49:25] Speaker 08:
You've left me I'm sure about your position.

[00:49:28] Speaker 08:
Sorry Yeah, there are statements in Wasden that I think go further than they need to go but if the if Wasden was merely assuming without deciding that all recordings are protected by the First Amendment

[00:49:39] Speaker 08:
I mean, I think you could probably make this a similar assumption and still uphold this laundry intermediate scrutiny.

[00:49:45] Speaker 00:
I'm a little bit confused by that because my understanding is that you can have conduct that is

[00:49:52] Speaker 00:
potentially expressive, but not necessarily expressive.

[00:49:55] Speaker 00:
My understanding is that's your argument here, that surreptitious recording can be expressive, but it also can be done for non-expressive purposes, you know, extortion, just record keeping, and those would not be intended to convey a message to an audience.

[00:50:11] Speaker 00:
And then we have a content neutral regulation of conduct that

[00:50:17] Speaker 00:
can be expressive, but it's not necessarily.

[00:50:19] Speaker 00:
The test seems to be quite clear.

[00:50:21] Speaker 00:
We apply O'Brien intermediate scrutiny as long as the statute is content neutral.

[00:50:28] Speaker 00:
So we don't have to assume that all expressive recording

[00:50:31] Speaker 00:
is to assume that all surreptitious recording is expressive to apply the test that we apply to statutes that are content neutral regulations that have an impact on expressive conduct.

[00:50:46] Speaker 00:
So I guess I'm a little bit confused about your doctrinal argument

[00:50:48] Speaker 08:
No, I think that's right.

[00:50:50] Speaker 08:
I guess I'm suggesting there's another path to get to intermediate scrutiny as well, which is to, even assuming that some or all of this is pure speech for purposes of the First Amendment, this is still a content neutral manner regulation, and so that would still be intermediate scrutiny.

[00:51:10] Speaker 08:
It wouldn't be O'Brien intermediate scrutiny, but I think it would essentially amount to the same thing.

[00:51:14] Speaker 08:
So I think those are two different paths to get to the same

[00:51:16] Speaker 08:
the same analysis.

[00:51:18] Speaker 07:
It sounds like you're having a difficult time.

[00:51:20] Speaker 08:
Go ahead, Judge Lee.

[00:51:23] Speaker 09:
Can you address whether the law is content-neutral or content-based restriction?

[00:51:28] Speaker 09:
You know, obviously, particularly the exception for law enforcement matters.

[00:51:32] Speaker 09:
I mean, that does seem like it's a content-based restriction because obviously it's going to relate to law enforcement issues by allowing people to tape without announcement or consent on those type of recordings.

[00:51:47] Speaker 08:
So a law is content-based or is not content-neutral if it turns on the communicative content of the recording, which means either the topic or the message being conveyed.

[00:52:03] Speaker 08:
And neither of the exceptions at issue here turn on the topic or the message.

[00:52:08] Speaker 08:
They turn on the circumstances under which the recording is made.

[00:52:13] Speaker 05:
But what do we do about READ?

[00:52:16] Speaker 05:
Because in READ, it seems like a regulation that treated speech differently, depending on its message, was content-based, regardless of the government's benign motive.

[00:52:29] Speaker 05:
Correct.

[00:52:29] Speaker 05:
So why isn't permitting recordings of law enforcement officers, but not city records clerks, treating speech differently, depending on its content?

[00:52:40] Speaker 08:
Because it's not the content of the speech being recorded, it's the circumstances under which it's being recorded.

[00:52:46] Speaker 08:
So it's true that it's going to have to involve a police officer on duty, and that may tend to involve certain kinds of conversations, but the exception doesn't turn on the words that are recorded.

[00:52:57] Speaker 03:
How do you distinguish the speaker?

[00:52:58] Speaker 03:
I think Reid, Citizens United, many other cases say that speaker discrimination can be just as bad as content discrimination to get us to strict scrutiny.

[00:53:07] Speaker 08:
Yeah, I mean, I think that can be a problem.

[00:53:10] Speaker 08:
But here, I mean, to me, the proof is that you could have exactly the same recording of exactly the same conversation.

[00:53:18] Speaker 08:
And it would or wouldn't fall within this exception based on things that have nothing to do with the recording itself.

[00:53:23] Speaker 08:
So this is not an exception for any conversation involving a police officer.

[00:53:28] Speaker 08:
It's a police officer on duty in public being openly recorded.

[00:53:32] Speaker 03:
Doesn't that make it more content?

[00:53:33] Speaker 03:
I'm thinking of Stevens here, which is distinguishable in terms of, but it dealt with criminal animal cruelty, a specific crime.

[00:53:42] Speaker 03:
We have similar definitions here, felony endangering human life.

[00:53:46] Speaker 03:
The police exception, which does have all of these special conditions that have to be met.

[00:53:53] Speaker 03:
Doesn't that get us close to content-based?

[00:53:55] Speaker 08:
Well, the conditions all have to do with the circumstances, not the actual conversation that you're recording may end up having very little to do with the policeman's duties or anything like that.

[00:54:12] Speaker 08:
So that's what makes this not content-based.

[00:54:15] Speaker 09:
If I may interrupt, the postal law said you can't secretly record someone without any announcement, but carved an exception for

[00:54:25] Speaker 09:
labor union officials and their official capacity.

[00:54:29] Speaker 09:
Wouldn't that be content-based restriction?

[00:54:31] Speaker 08:
I think it probably would be.

[00:54:33] Speaker 08:
This is, again, I think much narrower.

[00:54:35] Speaker 08:
And I guess to the extent that there's a content nexus here, it's a content nexus that comes from the First Amendment doctrine itself.

[00:54:43] Speaker 08:
I mean, the origin of this exception was the legislature recognizing that courts around the country have, including this court, have recognized a right to record the police in public.

[00:54:53] Speaker 08:
And so

[00:54:54] Speaker 08:
trying to craft an exception that met that.

[00:54:56] Speaker 08:
It's true that you're talking about matters of public interest versus matters that are not of public interest.

[00:55:02] Speaker 08:
That itself is content-based, but that's First Amendment doctrine.

[00:55:07] Speaker 06:
Well, we also know that the Supreme Court has very recently reminded us that just because there's an incidental burden on speech doesn't mean it's content-based.

[00:55:13] Speaker 06:
That's correct.

[00:55:14] Speaker 06:
And what we have in Fordyce and every other circuit that is discussed, whether members of the public should be allowed to

[00:55:21] Speaker 06:
record, video record, police in public, all of them have said that the first, including us, that the First Amendment demands that and it's not a matter of per city of Austin, it's not a matter of suppressing speech or favoring speech, it's a matter of public accountability.

[00:55:38] Speaker 08:
Yes, and I think Judge Christin, your dissent noted that even if you severed this off, and I'm happy to address severance,

[00:55:45] Speaker 08:
It wouldn't change what's actually allowed because the First Amendment would still protect the activity that this exception is covering.

[00:55:53] Speaker 05:
But can I ask you before, if you're going to read Severus, I'd like for you to sort of square the city of Austin with Reed, if you could.

[00:56:03] Speaker 08:
Yeah, I mean, I think they're both... There's some...

[00:56:07] Speaker 08:
There's some language maybe from Reid that City of Austin maybe slightly walks back, but both of them are essentially applying the same test, which is that if the regulation turns on the communicative content, the topic or the message, then it's content-based.

[00:56:26] Speaker 08:
So in Reid, what you had was different rules depending on whether you're advocating for or against something happening in an election or

[00:56:34] Speaker 08:
Signs telling people where to go.

[00:56:36] Speaker 06:
That's the communicative content of of the suggestion from Reed is that if you have to look at the content to figure out if the statute applies, then it's content based and city of Austin clearly tells us that is not the test.

[00:56:48] Speaker 08:
Correct.

[00:56:49] Speaker 08:
So I think there is some, there are some, maybe some sentences in Reed that city of Austin has clarified or other things that you think city of to answer chief judge Margaes question.

[00:56:58] Speaker 06:
Are there other things that you think city of Austin walks back?

[00:57:02] Speaker 08:
Well, I think it refocuses the analysis on whether the law is drawing distinctions based on communicative content, not sort of some... You mean favoring content, favoring message?

[00:57:18] Speaker 06:
Correct.

[00:57:18] Speaker 06:
And when you say communicative content, that sort of begs the question, that's the whole... We're doing a content-based inquiry, so that doesn't have to help.

[00:57:24] Speaker 08:
Yes, it says the topic, certain topics or a message being conveyed.

[00:57:30] Speaker 08:
That's what makes something content-based, is if the law privileges or disadvantages certain topics or a certain message being conveyed.

[00:57:39] Speaker 08:
And again, and we also think, I mean, if you think that either of these exceptions is problematic, Judge Christian's dissent correctly laid out the severability analysis.

[00:57:50] Speaker 08:
Severability is the rule in Oregon.

[00:57:53] Speaker 08:
and the only exceptions are if the remaining parts of the statute couldn't stand on their own or if it's apparent that the legislature wouldn't have enacted them on their own.

[00:58:04] Speaker 07:
So how would you deal with the tension if those provisions were severed with the established law of recording police officers in their in the line of duty?

[00:58:13] Speaker 08:
It would mean that there were circumstances under which the law couldn't constitutionally be applied.

[00:58:17] Speaker 08:
Again, I think that's something that the dissent pointed out correctly.

[00:58:22] Speaker 08:
There's sort of an irony of you sever this off and then you would have a valid as applied challenge.

[00:58:27] Speaker 08:
You'd have a court order saying,

[00:58:29] Speaker 08:
that this is allowed in probably pretty much the same circumstances that the legislature had said.

[00:58:34] Speaker 08:
So I think that kind of points out the absurdity of having to sever off the police officer exception.

[00:58:42] Speaker 08:
But severance is the rule under Oregon law, and it's apparent that the legislature would have enacted the rest of the statute without it.

[00:58:50] Speaker 08:
It did.

[00:58:52] Speaker 06:
It did decades earlier.

[00:58:53] Speaker 08:
Decades earlier, correct.

[00:58:55] Speaker 08:
And if you would ask the legislature in 1989 or in 2015, your choice is repeal the statute entirely or not enact this exception that you're thinking about enacting.

[00:59:09] Speaker 02:
Because you're saying that if the exceptions were stricken, they'd be put back in as sort of constitutionally required.

[00:59:17] Speaker 02:
And yet, I understand your argument, you've not

[00:59:21] Speaker 02:
contested that if strict, that if contemplate strict scrutiny applies that it wouldn't survive.

[00:59:28] Speaker 02:
Well, even though you're saying you're drawing a line that's required by the Constitution, you conceded that it wouldn't survive strict scrutiny.

[00:59:35] Speaker 08:
If it's content-based, yeah, correct.

[00:59:39] Speaker 08:
But the correct approach in that circumstance is to sever the exceptions and then I guess it's up to the courts to determine case by case as applied which recordings are protected or not as opposed to having the legislature tell people which recordings are protected.

[01:00:05] Speaker 04:
Council, did I hear you say that Wasden assumed but did not decide that video and audio recordings are not protected by the First Amendment?

[01:00:17] Speaker 08:
So as I read it, I think Wasden said that they are protected.

[01:00:20] Speaker 04:
Yes, I would think that it says so pretty clearly.

[01:00:22] Speaker 08:
Yes, I think it was Judge Desai who was suggesting that maybe it was really just assuming that or, you know, some of that broader language might maybe use dicta.

[01:00:34] Speaker 08:
It certainly wasn't necessary for the court to say that all recordings are protected in order to reach its holding.

[01:00:40] Speaker 06:
What Judge Desai was trying to get you to address is if you think WASDA needs to be clarified, how would you clarify it and what test we adopt?

[01:00:48] Speaker 08:
I think the best way to clarify it would be to say that even, although many or most recordings trigger First Amendment scrutiny, it hits its limit when you are talking about somebody else's speech rights, somebody else's freedom not to speak.

[01:01:08] Speaker 08:
And that's what makes this case different.

[01:01:10] Speaker 08:
There are First Amendment interests on both sides of the balance here, unless the Court has any other questions.

[01:01:17] Speaker 08:
Thank you.

[01:01:27] Speaker 05:
You are out of time, but I'll give you a minute to respond.

[01:01:39] Speaker 10:
In a minute, I will quickly address a few points that were raised.

[01:01:42] Speaker 10:
I think Judge Collins' observation here is directly on point.

[01:01:46] Speaker 10:
This is one of the broadest recording laws in the nation, and it's dangerous.

[01:01:52] Speaker 10:
This is raised in the Craigus brief that describes all sorts of scenarios someone on the ground has encountered.

[01:01:58] Speaker 10:
and is described in our briefings below of all the spontaneous circumstances that in all the information that flows in the public arteries of America and in Oregon and on the streets of Portland that they want to capture, not just in protests, outside of protests where people share a little more candid information, not where government tells you to go to speak, but in other areas where you can elicit helpful information that provides all the sort of social gains that only investigative journalism does in America.

[01:02:28] Speaker 10:
I think Wasden has the right framework here.

[01:02:31] Speaker 10:
I think if you analyze the farm as the scene in Wasden, and you can't have any conduct recorded here, the scene is much broader.

[01:02:37] Speaker 10:
It's a day-to-day life, and you can't capture and report on important information to the American public.

[01:02:43] Speaker 10:
I believe the lower court's opinion, this court's opinion, should be reinstated.

[01:02:47] Speaker 10:
Thank you, Your Honors.

[01:02:49] Speaker 05:
Thank you, Mr. Barr and Mr. Gutman, for both of your oral argument presentations.

[01:02:55] Speaker 05:
Very illuminating.

[01:02:58] Speaker 05:
The case of Project Veritas versus Michael Schmidt is now submitted, and we are adjourned.

[01:03:04] Speaker 05:
Thank you all.