The U.S. Supreme Court on Monday declined to hear a challenge to a longstanding Oregon law barring unannounced audio recordings of in-person conversations, crushing a right-wing media group’s campaign to strike down some of the nation’s strictest restrictions on such forms of content reproduction.
The decision leaves in place a January 2025 ruling from the 9th Circuit Court of Appeals dismissing a challenge from Project Veritas, a right-wing organization that frequently publishes edited “sting” videos that negatively depict liberal groups and mainstream journalists. The group argued that the law impinges on the First Amendment and free speech protections and secured a brief victory from a smaller panel of circuit judges in a 2-1 decision declaring the law unconstitutional back in July 2023.
Oregon is among a handful of states in the nation to outlaw audio recording of in-person conversations if all participants are not “specifically informed.” The law has exceptions for recordings involving situations such as life-threatening felonies or on-duty law enforcement interactions. It does not apply to the visual component of recordings or phone calls, which only require one party consent in Oregon.
Benjamin Barr, the D.C.-based attorney representing Project Veritas, did not immediately respond to a request for comment. In a statement to Courthouse News, he vowed to “keep bringing these challenges nationwide.”
“It’s disappointing that the Supreme Court declined to hear this case,” Barr said. “The court missed a vital opportunity to affirm that the First Amendment protects citizens who record public officials doing the public’s business.”
Jenny Hansson, a spokesperson for the Oregon Department of Justice, said the decision reaffirms that Oregonians have a right to know when they’re being recorded and to choose the manner in which their words are shared.
“Oregon’s law strikes a balance between transparency and privacy, recognizing that consent and context matter,” Hansson wrote in a statement. “Whether it’s a private support group, a conversation with a friend, or a difficult moment shared in confidence, people deserve the dignity of deciding whether those words live beyond the moment.”
Most professional American journalists identify themselves and inform subjects if a conversation will be used for an article or recorded, aligning with guidance on ethics from groups such as the Society of Professional Journalists. The New York-based Project Veritas, however, has long sought to expose what it sees as liberal bias creeping throughout U.S. society, drawing criticism for its use of edited videos and hidden cameras.
The group has also long been embroiled in controversy involving law enforcement and criminal investigations. Founder James O’Keefe, alongside three other members, pleaded guilty to misdemeanor charges in 2010 for phone tampering with the office of former U.S. Sen. Mary Landrieu, a Democrat from Louisiana.
The group’s board removed O’Keefe from his position as chairman in 2023 amid allegations of financial malfeasance. In February, the U.S. Department of Justice also abruptly closed its years-long investigation into Project Veritas after it acquired a stolen diary from former President Joe Biden’s daughter Ashley Biden.
Oregon’s take: ‘No First Amendment right to eavesdrop or wiretap’
Project Veritas had argued in its lawsuit that Oregon’s law prevented it from doing meaningful reporting on allegations of political pressure on the Office of the Oregon Public Records Advocate and violence at protests in Portland, which would require the use of secret recordings. But Oregon lawyers had argued in court that their law was content-neutral and not aimed at regulating recordings of public officials and specific government actions.
“Recording someone else’s speech is not inherently expressive conduct. It also implicates the other person’s freedom not to speak, particularly when done secretly,” attorneys wrote in a May 2024 court filing. “There is no First Amendment right to eavesdrop or wiretap. And freedom of speech does not mean the freedom to use another person to create speech.”
Opposition to Oregon’s law, however, did not fall squarely alongside partisan lines. The nonpartisan national free speech group Foundation for Individual Rights and Expression joined a coalition of free expression scholars and animal welfare activists in an amicus brief supporting Project Veritas, writing that “undercover recordings have greatly contributed to public discourse, accountability and safety.”
Gabe Walters, an attorney for the Foundation for Individual Rights and Expression, told the Capital Chronicle that “it’s a shame” the law won’t face the Supreme Court. He said the court missed a chance to reaffirm the basic principles of the First Amendment that support investigative journalism.
“A law that permits surreptitiously video recording others, but bans audio recording, is a blatantly unconstitutional restriction on the creation of speech,” he wrote in a statement, “whether it’s applied to Project Veritas, animal rights investigators, or muckraking citizen journalists of any political stripe.”
