Monday, July 03, 2023

Project Veritas v. Smith (9th Cir. July 3, 2023)

This is a huge opinion. It holds that Oregon's prohibition on secretly recording communications between two people violate the First Amendment. Judge Ikuta authored the majority opinion, and Judge Christen dissented.

Although the plaintiff here wanted to secretly record communications involving public issues (e.g., public officials, BLM officers, etc.), the holding seems to me to apply equally to secretly recording even routine conversations with your neighbors, coworkers, etc. Similarly, while the narrow holding was that the law at issue was unconstitutional because it allowed some nonconsensual recordings -- particularly, body-worn cameras by police officers -- but not others, most state laws contain the same exceptions.

So for states -- including California -- with two-party consent statutes, if the opinion stands, I doubt that most of them would survive.