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 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.
