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From what I understand, the two-party consent state was born from telephone call wiretapping.

Assume I am in a two-party consent state. To record audio and video, I need the other parties involved in the recording to agree.

Assume I am in a public space where there's no expectation of privacy.

I want to record only video, with no audio input whatsoever in the source (e.g. using a camera without a mic). Do I still need consent?

Security cameras already do that. I believe that it is akin to snapping a photo in a public setting.

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  • Have you done any kind of research, or observation in public places? Commented Jul 10 at 23:41
  • The inspiration for the law does not take precedence over the law. Regardless of whether it was related to wiretapping, if the law mentions recordings without specifying what media is being captured by the recording, then it applies equally to audio and video.
    – Flater
    Commented 2 days ago

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Short Answer

There is no uniform answer to this question that applies to the entire United States at this time.

Long Answer

Most (but not all) two party consent laws do not apply to video recordings without audio, that are not wiretaps, by their own terms.

Many U.S. states with two party consent laws (and many U.S. states that do not have such laws) have separate laws governing video recording.

Most state laws regulating video recording are limited to prohibiting covert video recording in a private place, and are sometimes also limited to sexually explicit and/or nudity revealing video. But there is no uniform language or model for these laws and their exactly language and scope vary materially from one state to another.

Also, the purpose for the recording, and the uses to which the recording are put, may be relevant.

For example, many federal courts have recognized a constitutional right to record audio and video of law enforcement officers carrying out their official duties which supersedes any contrary state or federal law.

And, in some states, a state law right of publicity may limit the extent to which audio or video of a person which is otherwise legal may be used for commercial purposes such as marketing or an entertainment product without the consent of the person recorded.

What does a two party consent statute require? And, is it valid?

I also disagree with your assumption in the question that you need two party consent under a two party consent law to record audio in a public place where there is no expectation of privacy.

Most two party consent laws are expressly limited to telephone or electronic communications, and do not apply to oral statements made by someone in a public place with no reasonable expectation of privacy. Indeed, to the extent that a law purports to prohibit that, it may be unconstitutional as a violation of the freedom of the press.

The U.S. Court of Appeals for the 9th Circuit has held in a 2-1 decision, in the case of Project Veritas v. Schmidt, 72 F.4th 1043 (July 3, 2023), that Oregon's two party consent law was unconstitutional as a violation of the First Amendment in the context of that case. En banc review was granted on March 19, 2024 at 95 F.4th 1152, which vacates this decision as binding precedent, pending a rehearing on the merits before an en banc panel of the 9th Circuit, which will probably not issue its opinion for many months.

The argument which was accepted by the 9th Circuit panel whose decision is now being reheard and of the dissent, are summarized in an official syllabus of the case which states, in part:

The panel reversed the district court’s dismissal of a complaint challenging, as an unconstitutional restriction of protected speech, Section 165.540(1)(c) of the Oregon Revised Code, which generally prohibits unannounced recordings of conversations, subject to several exceptions.

Section 165.540(1)(c) of the Oregon Revised Statutes provides that a person may not obtain or attempt to obtain the whole or any part of a conversation by means of any device if not all participants in the conversation are specifically informed that their conversation is being obtained. The law provides two exceptions relevant to this appeal: (1) section 165.540(1)(c) does not apply to a person who records a conversation during a felony that endangers human life, Or. Rev. Stat § 165.540(5)(a); and (2) section 165.540(1)(c) allows a person to record a conversation in which a law enforcement officer is a participant if the recording is made while the officer is performing official duties and meets other criteria. Plaintiff Project Veritas, a non-profit media organization that engages in undercover investigative journalism, states that it documents matters of *This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader public concern by making unannounced audiovisual recordings of conversations, often in places open to the public.

Applying Animal Legal Def. Fund. v. Wasden, 878 F.3d 1184 (9th Cir. 2018), the panel held that section 165.540(1)(c) regulates protected speech (unannounced audiovisual recording) and is content based because it distinguishes between particular topics by restricting some subject matters (e.g., a state executive officer’s official activities) and not others (e.g., a police officer’s official activities). As a content-based restriction, the rule fails strict scrutiny review because the law is not narrowly tailored to achieving a compelling governmental interest in protecting conversational privacy with respect to each activity within the proscription’s scope, which necessarily includes its regulation of protected speech in places open to the public. Thus, citing Cohen v. California, 403 U.S. 15, 21 (1971), and Hill v. Colorado, 530 U.S. 703, 717 (2000), the panel held that Oregon does not have a compelling interest in protecting individuals’ conversational privacy from other individuals’ protected speech in places open to the public, even if that protected speech consists of creating audio or visual recordings of other people. The panel further determined that section 165.540(1)(c) burdens more speech than is necessary to achieve its stated interest and there were other ways for Oregon to achieve its interests of protecting conversational privacy. Finally, addressing the dissent, the panel determined that severing the exceptions that made the general prohibition content based and extending the general prohibition to those protected First Amendment activities, would create significant constitutional issues rather than cure them. Because section 165.540(1)(c) is not a valid time, place, or manner restriction, it cannot be saved by striking the two exceptions at issue here.

Dissenting, Judge Christen stated that because the majority does not dispute that the State has a significant interest in protecting the privacy of Oregonians who engage in conversations without notice that their comments are being recorded, the court’s analysis should be straightforward. First, principles of federalism require that the panel begin from a premise of reluctance to strike down a state statute. Next, following Supreme Court precedent, the panel should sever the two statutory exceptions that Project Veritas challenges, apply intermediate scrutiny to the content-neutral remainder, recognize that the statute is welltailored to meet Oregon’s significant interest, and uphold section 165.540(1)(c) as a reasonable time, place, or manner restriction. Judge Christen stated that the purpose Oregon advances is its significant interest in protecting participants from having their oral conversations recorded without their knowledge. The majority recasts the State’s interest as one in “protecting people’s conversational privacy from the speech of other individuals.” That reframing of the legislature’s purpose serves as the springboard for the majority’s reliance on an inapplicable line of Supreme Court authority that pertains to state action aimed at protecting people from unwanted commercial or political speech, not protection from speech-gathering activities like Project Veritas’s, which are qualitatively different because they appropriate the speech of others.

The en banc panel could overrule the 9th Circuit panel decision entirely, but might also merely narrow the scope of its holding.

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    Is the 1st Amendment relevant if the party doing the recording is not a member or agent of the press?
    – Barmar
    Commented 2 days ago
  • 4
    @Barmar there is no “the press” to which freedom of the press applies - it applies to everybody.
    – Dale M
    Commented 2 days ago
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    @DaleM If that's true, what's the difference between freedom of speech and freedom of the press? Why would there be multiple freedoms if everyone who publishes something is the press? Has this changed in modern times because the Internet allows anyone to be a publisher?
    – Barmar
    Commented 2 days ago
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    @Barmar Even in 1791 when the Bill of Rights were adopted, the distinctions were fuzzy enough to include in one amendment. The freedom of the press focuses on the ability to publish an idea to a wide audience. The freedom of speech could, in principle, have a much smaller audience.
    – ohwilleke
    Commented 2 days ago
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    @Barmar If the law facially impairs people who want to speak or want to publish, it can be unconstitutional, even if, in a particular instance, there isn't an intent to publish at the time it is recorded (and of course, someone can change their mind after the recording is made). It also bears noting that a reporter or video journalist only actually publishes a tiny fraction of what they record/photograph/video record. At National Geographic, e.g., only one in 2000 or so photos taken for an assignment are actually published.
    – ohwilleke
    Commented 2 days ago

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