A Passenger In A Car Stopped By a Police Officer May Have A First Amendment Right to Livestream the Traffic Stop: Sharpe v. Winterville Police Dept., 59 F.4th 674 (4th Cir. 2023)

The plaintiff was a passenger in a car that was stopped by two police officers of the Winterville Police Department.  The plaintiff alleged that during the traffic stop, he was live-streaming the events from his phone to his Facebook account.  One of the police officers ordered the plaintiff to stop live-streaming the traffic stop and claimed that his live-streaming the traffic stop was a danger to the officers’ safety.  The plaintiff was told, however, that he was free to record the traffic stop.  The plaintiff was allegedly told that if he live-streamed a traffic stop in the future “he would have his phone taken away or be arrested.”

The plaintiff sued the Winterville Police Department, one of the individual officers (in his personal capacity), and others.  The district court “awarded Defendants judgment on the pleadings after finding that the policy, as alleged, did not violate the First Amendment.”  The district court also dismissed the claim against the police officer on the ground that he was protected by qualified immunity.

The Fourth Circuit held that the plaintiff had plausibly alleged a violation of his First Amendment rights and reversed the district court’s decision.  The Fourth Circuit, however, affirmed the district court’s dismissal of the claim against the individual police officer on the ground of qualified immunity.  We will not address the qualified immunity issue in this article.

The Fourth Circuit did not rule that the First Amendment rights of passengers in a car are necessarily violated when a police officer orders a passenger to stop live-streaming the traffic stop.  The Fourth Circuit held that the plaintiff in Sharpe had plausibly alleged a violation of his First Amendment rights, and that the district court would need to address whether (a) the Winterville Police Department had a policy against passengers in a car, and (b) whether that policy had a justification that allowed the limitation on the plaintiff’s First Amendment rights.

The Fourth Circuit first addressed whether the plaintiff plausibly alleged that a policy existed against live-streaming.  It is sometimes difficult to show the existence of a policy because the plaintiff may not have access to the relevant documents, or the policy may not be reduced to writing.  In Sharpe, the court found that the following allegations created a reasonable inference that such a policy existed.  First, one of the officers tried to seize the plaintiff’s cell phone when he learned that the plaintiff was live-streaming the traffic stop.  Second, one the officers allegedly told the plaintiff that “in the future if Sharpe broadcasts on Facebook Live [during a traffic stop] his phone will be taken from him and, if Sharpe refuses to give up his phone, he will go to jail.”  Finally, “both officers justified their efforts to prevent live-streaming using the same officer-safety rationale.”

With respect to the First Amendment, the court stated that the First Amendment protects the creation and dissemination of protected speech.  Protected speech includes discussions concerning governmental affairs, and encounters between individuals and the police fall within the category of governmental affairs.  While the Fourth Circuit had not previously addressed whether a right to livestream a traffic stop fell within the scope of the First Amendment, the court noted that other courts had held that recording police encounters was protected by the First Amendment.  The Fourth Circuit concluded that “[r]ecording police encounters creates information that contributes to discussion about governmental affairs. . . . [s]o too does live-streaming disseminate that information.”

Recording an event and live-streaming an event are not the same thing.  The officers involved in the traffic stop in Sharpe, allegedly told the plaintiff that he was free to record the event and that they were recording the event also.  The court’s holding that recording a police traffic stop was protected by the First Amendment, did not resolve the issue whether live-streaming police encounters was entitled to similar First Amendment protection.  Recording a traffic stop does not instantaneously disseminate the information to others.  The instantaneous dissemination of information by live-streaming could raise officer safety issues that are not created by recording the incident and disseminating the recording at a later time.  The facts needed to support such an argument, however, were not developed at the district court level.

The Fourth Circuit held that the defendants could justify a ban on livestreaming by passengers to a traffic stop if they could show that “(1) the Town has weighty enough interest at stake; (2) the policy furthers those interests; and (3) the policy is sufficiently tailored to furthering those interests.”  Officer safety is a “weighty” interest.  The defendants, however, are going to have to present facts showing that live-streaming a traffic stop by a passenger actually creates safety issues and that an outright ban on live-streaming by passengers is not overly broad.

On appeal, the defendants argued that live-streaming a traffic stop raised officer safety issues, because “viewers can locate the officers and intervene in the encounter,” and that “banning live streaming prevents attacks or related disruptions that threaten officer safety.”  This may be true, but the facts developed in the case, so far, were not sufficient to show that the defendants could meet their burden of justifying a limitation on First Amendment rights.  Accordingly, the Fourth Circuit reversed the dismissal of the plaintiff’s First Amendment claim and sent the case back to the district court for further litigation.

How police officers interact with civilians is an extremely important issue.  The ability of individuals to record those interactions, therefore, falls squarely within the First Amendment.  While this was not an issue 15 years ago, changes in technology have given anyone with a cellphone the ability to record and broadly disseminate videos of police interactions with civilians.  This ability, however, may raise safety concerns for police officers that courts will have to address.  Courts will need to carefully evaluate government claims that live-streaming police interactions raise safety issues and that those safety concerns are serious enough to justify restraints on First Amendment rights.

Our First Amendment rights are not merely words on paper—they are the principles that ensure fairness, dignity, and equality for all. If your right to free speech has been violated, it is important that you seek the assistance of an experienced civil rights attorney. At The Law Offices of George M. Sanders, we are dedicated to advocating for our clients and protecting their rights. Contact our civil rights law firm in Chicago today.