FIRE joins animal advocates, free speech groups urging Ninth Circuit to affirm ruling that allows undercover audio recording

SAN FRANCISCO, Calif., April 24, 2024 — Last night, lawyers from the Animal Activist Legal Defense Project filed a friend-of-the-court (“amicus”) brief on behalf of People for the Ethical Treatment of Animals, Animal Outlook, constitutional law professors, and the Foundation for Individual Rights and Expression in support of a federal court ruling that struck down an Oregon law requiring consent by all parties to an audio recording—even in public places, where there is no reasonable expectation of privacy. 

The full U.S. Court of Appeals for the Ninth Circuit will reconsider the ruling, issued by a three-judge appellate panel, which held Oregon’s requirement violated the First Amendment in Project Veritas v. Schmidt. For decades, journalists, undercover investigators, and animal rights activists — including PETA and Animal Outlook — have used audiovisual recordings to expose corruption, crime, and violence against animals in agricultural facilities and elsewhere.

READ THE FULL BRIEF

“The modern-day Upton Sinclair would not conduct his landmark investigation into Chicago’s meatpacking plants relying solely on his written notes, based on memory, and transcribing them into a book,” said Chris Carraway, Staff Attorney at the Animal Activist Legal Defense Project, referring to Sinclair’s groundbreaking work, The Jungle. “He would instead create audiovisual recordings and distribute them across the Internet for mass consumption. Oregon’s statute prohibits many modern examples in which audiovisual recordings have contributed greatly to issues of public concern.”

Oregon’s statute permits an individual to secretly observe conversations and republish those statements in writing, as well as to surreptitiously film an individual, without capturing audio. However, it draws the line at recording conversations — through audio, or a combination of audio and video — a distinction that the amicus parties say is arbitrary and violates the First Amendment. 

Numerous surreptitious audiovisual recordings by PETA, Animal Outlook, and other animal rights advocates have documented horrific treatment of animals in agriculture, experimentation, and other industries that use and abuse animals. 

Describing the impact of those investigations, Cheryl Leahy, Executive Director of Animal Outlook, said, “One can certainly conceptualize the pain of an animal from a written description or silent video. But when one hears an animal’s cries, the listener feels that pain in a completely different, and much more impactful, manner.”

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“The federal court ruled that Oregon’s law was an impermissible restriction on free speech, and we fully expect the court to uphold this ruling,” says PETA Foundation Managing General Counsel Jared Goodman. “All Oregonians have a First Amendment right to expose criminal wrongdoing, including cruelty to animals. Animal rights defenders, including PETA, will continue to use every legal means at their disposal, from whistleblower reports to undercover investigations, to expose the horrors that occur behind closed doors in laboratories, slaughterhouses, puppy mills, and other abusive facilities.”

“Oregon has drawn its own line determining how journalists and others can record when uncovering the truth — and that line runs headlong into the First Amendment,” said Gabe Walters, FIRE attorney. “Recordings can be essential for newsgathering on issues that matter most to the public, but wrongdoers have a funny habit of straightening up when they know they’re being recorded. Today, FIRE is proud to fight alongside a broad coalition of advocates to protect this important right to expose what’s wrong.”

These days, notes the brief, news stories are as likely to be broken by ordinary citizens recording on their cell phones as by mainstream journalists for major publications. Likewise, most people consume news through audiovisual mediums, including online videos and podcasts, and the self-authenticating quality of audio recordings makes them a particularly persuasive means of conveying information. The brief further discusses the negative impacts of a requirement to give notice of recording, including chilling candid conversations and putting would-be recorders at risk of harassment and even violence.

Oregon is one of only five states that requires the consent of more than one party to audio recordings, and its broad prohibition on audio recordings—including in public places—is one of the most restrictive in the country.

CONTACT:

Daniel Burnett, Senior Director of Communications, FIRE: 215-717-3473; media@thefire.org

Lauren Gazzola, AALDP, press@aaldp.com

David Perle, PETA, davidp@peta.org

Belinda Davis, Animal Outlook, press@animaloutlook.org

The Foundation for Individual Rights and Expression (FIRE) is a nonpartisan, nonprofit organization dedicated to defending and sustaining the individual rights of all Americans to free speech and free thought—the most essential qualities of liberty. FIRE educates Americans about the importance of these inalienable rights, promotes a culture of respect for these rights, and provides the means to preserve them.

PETA — whose motto reads, in part, that “animals are not ours to use in any way” — points out that Every Animal Is Someone and offers free Empathy Kits for people who need a lesson in kindness. For more information, please visit PETA.org or follow the group on X, Facebook, or Instagram.

Animal Outlook strategically challenges animal agribusiness through undercover investigations, legal advocacy, corporate and food system reform, and disseminating information about the many harms of animal agriculture, empowering everyone to choose vegan.

The Animal Activist Legal Defense Project at the University of Denver Sturm College of Law works to empower and defend animal advocates through activist defense, affirmative litigation, and training law students to join and transform the field of animal law. Learn more at: AALDP.com and follow us on Twitter/X at @AALDP_DU.

Julian R. Ellis, Jr., and Chris Murray of the law firm First & Fourteenth are co-counsel on the brief.