Project Veritas v. Schmidt: Why Oregon's Recording Law Survived a First Amendment Challenge

Oregon’s wiretap statute, ORS 165.540(1)(c), bars recording an in-person conversation if not all participants are specifically informed that their conversation is being obtained. This applies regardless of location—cafés, parks, sidewalks, or any other public or semi-public place. The Ninth Circuit’s en banc ruling in Project Veritas v. Schmidt, issued January 7, 2025, confirmed this interpretation, rejecting arguments that the law should not reach conversations in public because they might be overheard. The court wrote that Oregon’s interest in protecting private conversations includes those that occur in public or semi-public locations, citing Katz v. United States and Carpenter v. United States. The dissent, while critical of the law’s breadth, agreed on the plain meaning: Oregon criminalizes audio-recording someone in public without notice, even if the conversation has no reasonable expectation of privacy. The statute’s definition of “conversation” is broad and contains no privacy gate; it simply covers any oral, multi-party communication that isn’t a phone call or radio transmission.

Oregon’s law treats phone calls and video calls differently. Under ORS 165.540(1)(a), a participant in a phone call can record the call without any consent from the other party; the statute only restricts a person who is not a participant from obtaining the call, and even then only requires that consent is given by at least one participant. The Oregon State Bar’s Formal Ethics Opinion No. 2005-156 (revised 2015) states this as a general rule: one party to a telephone conversation may record without notice, while in-person conversations require notice to all participants. Video calls, however, are treated like in-person conversations. A 2021 amendment moved video-conferencing calls out of the phone-call category and into the all-party notice rule by redefining “conversation” to expressly include communications through video-conferencing programs. So a voice-only call is effectively one-party consent, but a Zoom or FaceTime call requires notice to everyone. The statute also carves out a narrow exception for video-call recordings made to capture evidence of unlawful activity in coordination with law enforcement or an attorney.

Oregon allows recording on-duty police officers from a lawful vantage point if done openly and in plain view, but secretly recording them remains illegal. ORS 165.540(5)(b) permits this only if the recording is done openly, in plain view, audible to normal unaided hearing, and from a place the recorder may lawfully be. The Ninth Circuit upheld the entire statute, including this exception, against First Amendment challenges in Project Veritas v. Schmidt. The court emphasized that the exception is content-neutral and narrowly tailored, focusing on the manner of recording rather than the content. Secret recording of police does not qualify and remains a Class A misdemeanor under ORS 165.540(9). The statute does not allow hidden or surreptitious recording of on-duty officers, even if the officer is in public.

Oregon’s “homeowner’s exception,” ORS 165.540(3), allows a telecom subscriber or a member of their family to record conversations in their home without notice or consent. This exception applies to all three prohibited-act categories—telecommunications/radio interception, line-tampering, and in-person conversation recording—and covers essentially any conversation or call accessible in the home, even if the wearer is not a participant. Three Oregon Court of Appeals decisions—State v. Evensen, State v. Rainey, and Checkley v. Boyd—confirm this broad reading. Evensen held the exception applies to family members recording in a shared home, even if the recording device has no active phone subscription. Rainey held the exception turns on where the recording act occurs, not where the conversation happens, so recording an argument outside the home from inside the home qualifies. Checkley held the exception covers non-participants recording calls between others in the home. The exception does not extend to other private spaces like a friend’s home, hotel room, or short-term rental; it is strictly limited to the wearer’s own residence.

In Project Veritas v. Schmidt, the Ninth Circuit upheld Oregon’s all-party notice rule against First Amendment challenges. The en banc majority rejected arguments that the law unconstitutionally burdens speech by criminalizing audio-recording in public places. The court found Oregon has a significant interest in protecting private conversations, even those occurring in public, and that the law is narrowly tailored to achieve that interest. The statute is content-neutral, focusing on the manner of recording rather than the content of speech. The court also upheld the on-duty police recording exception, finding it survives intermediate scrutiny. The dissent criticized the breadth of the law, noting it criminalizes recording public officials in public places without notice, but even the dissent agreed on the statute’s plain meaning. This ruling means Oregon’s rule stands as written, with only the narrow carve-outs the legislature and courts have recognized.

Oregon’s wiretap statute regulates audio only; it does not restrict silent video-only recording or photography. So filming someone in public without audio is unrestricted by this law. The statute also does not create a private right of action—enforcement is limited to criminal prosecution by the state. Oregon’s broader privacy law, the Oregon Consumer Privacy Act, may apply to certain uses of recorded voice data, especially if the data includes biometric identifiers like voiceprints, but that law is separate from the wiretap statute and has its own thresholds and requirements. The wiretap law also does not cover amateur or citizens-band radio interception, broadcast reception, or certain law-enforcement recording devices like body cameras. The statute’s exceptions are specific and limited to those explicitly listed.

Imagine you’re at a café and overhear two people loudly arguing about a local issue. You pull out your phone to record the argument. Under Oregon law, you must tell both people you’re recording; otherwise, you’re breaking the law. If you record a phone call with a colleague to discuss a work issue, you can do so without telling them—Oregon treats phone calls as effectively one-party consent. But if the call is on Zoom or FaceTime, you must tell everyone on the call you’re recording; video calls are treated like in-person conversations. If you’re at home and your roommate is on a phone call in the next room, you can record it without notice under the homeowner’s exception. But if you visit a friend’s apartment and record a conversation there, the exception does not apply—you must tell everyone you’re recording. If you openly record an on-duty police officer arresting someone in a public park from a lawful vantage point in plain view, that’s allowed; if you hide your phone to record the same scene, it’s illegal.