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First Amendment

Oregon law barring secret audio recordings does not violate First Amendment, en banc appeals court says

By Debra Cassens Weiss

January 9, 2025, 11:14 am CST

A federal appeals court has tossed a challenge to an Oregon law that generally bans secret audio recordings.

The en banc 9th U.S. Circuit Court of Appeals at San Francisco ruled Tuesday that the conversational privacy law does not violate the First Amendment.

Law360, Reuters, the Volokh Conspiracy and the Legal Profession Blog have coverage.

The Oregon law generally requires people making an audio recording to notify the target. It was challenged by the activist group Project Veritas, which uses undercover journalism in support of its conservative message.

The law’s “relatively modest notice requirement” is narrowly tailored to a significant government interest in letting Oregon residents know when their conversations are being recorded, the appeals court said in the 9-2 decision.

Judge Morgan Christen, an appointee of former President Barack Obama, wrote the majority opinion.

“Because Oregon’s statute does not discriminate on the basis of viewpoint or restrict discussion of an entire topic, we conclude it is content neutral, and that it survives intermediate scrutiny,” Christen wrote.

The Oregon law has several exceptions to the ban on unannounced audio recordings.

One exception allows oral recordings of conversations during a felony that endangers a human life. Another allows audio recordings of conversations by a law enforcement officer performing official duties in plain view, when the person making the recording has a lawful right to be there. Yet another allows open audio recordings at public gatherings and in private meetings in which participants can reasonably expect that they are recorded.

The 9th Circuit said the law is content neutral because it does not draw distinctions based on a speaker’s viewpoint and was not enacted because of disagreement with a speaker’s message. It also allows other alternatives that allow a would-be recorder to disseminate a message.

“Project Veritas retains numerous alternative channels to engage in its journalistic speech activities,” the 9th Circuit said. “It may employ all the traditional tools of investigative reporting, including talking with sources, reviewing records, taking photographs, recording videos openly during public and semi-public meetings and events, recording videos that do not capture oral conversations, recording conversations after announcing it is doing so, and making use of Oregon’s freedom-of-information laws.

“Project Veritas may have its reporters go undercover and report on what they have seen and heard—without secretly recording its targets—as journalists have done for centuries.”

Project Veritas lawyer Benjamin Barr said his client will seek review with the U.S. Supreme Court. He told Law360 that the decision upholds the “broadest recording law in the nation” and “suffocates a reporter’s ability to investigate corruption and work with whistleblowers.”

The case is Project Veritas v. Schmidt.

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Judiciary

Judge not hearing cases after allegedly calling herself ‘a new racist’ in secret recordings

By Debra Cassens Weiss

September 10, 2024, 12:52 pm CDT

A probate judge in Michigan was removed from her docket following the release of recordings in which she allegedly called herself “a new racist,” made derogatory remarks about Black people and used a gay slur.

Judge Kathleen Ryan of Oakland County, Michigan, was removed from hearing cases Aug. 27 after Edward Hutton, the Oakland County Probate Court administrator who is a lawyer, released the recordings to public officials and WXYZ. He said he has been recording Ryan for years.

WXYZ broke the story, followed by articles in the Guardian, Above the Law, the Detroit Free Press and the Detroit News.

Hutton said he released the recordings in August because he heard nothing after sending a sexual harassment notice involving Ryan to Oakland County’s chief judge in May.

Besides making derogatory comments, Ryan also described sexual encounters “in intimate detail,” Hutton alleged in an interview with WXYZ. He said he didn’t speak up for years because he didn’t want to lose his job and didn’t want to be in the judge’s “crosshairs.”

Ryan was removed from her docket pending further investigation. The allegations have also been sent to the Michigan Judicial Tenure Commission.

Among Ryan’s alleged comments:

  • “I can honestly say that, OK, I’m not systemically racist—I’m a new racist. I never was, but now I am because you’re shoving this s- – – down my throat, making allegations that you don’t know s- – – about. You’re telling me who I am, and you’ve never f- – -ing met me. F- – – you!”

  • “If you’re a Black from any other country, you’re doing way better. If you’re an American Black person, then you’re a f- – -ing lazy piece of s- – -.”

  • An elected official is a “little f- – – – -” (a gay slur) and is “a skinny white girl.”

Hutton told WXYZ that he hasn’t filed a lawsuit, and he is not “looking for a payday. I want to keep my job and do it in peace. And I want the people in Oakland County that come to court to get a fair shake, to have their day in court, to have an unbiased trier of fact.”

Gerald Gleeson and Thomas Cranmer, Ryan’s lawyers, told WXYZ that they “look forward to vindicating Judge Ryan in the appropriate forum.”

Oakland County Probate Judge Daniel O’Brien told WXYZ that the alleged statements are totally out of character for Ryan, and her friends are supporting her. She has been a probate judge since 2010.