Contrary to what some have asserted on social media, it’s not quite a done deal, as the Fourth Circuit’s decision in Sharpe v. Winterville Police Dep’t neither affirmatively held that the livestreaming by a passenger in a traffic stop was definitely protected by the First Amendment, nor foreclosed the possibility that on a different record, the claim of officer safety wouldn’t be sufficiently established to overcome strict scrutiny. But at least, for the moment, the court held that in in the absence of such a showing, there was a First Amendment right to do so.
This case asks whether a town’s alleged policy that bans video livestreaming certain
interactions with law enforcement violates the First Amendment. It also asks whether a
police officer who, during a traffic stop, attempted to stop a passenger from livestreaming
the encounter may be successfully sued under § 1983 for violating the passenger’s First
On the first question, Defendants have thus far failed to establish that the alleged livestreaming policy is sufficiently grounded in, and tailored to, strong governmental
interests to survive First Amendment scrutiny.
What’s curious is that the court reached this holding because it didn’t have to. In § 1983 cases, failure to meet either prong of the test, that a constitutional right has been violated and that the right was clearly established, is sufficient to defeat the claim and courts are under no duty to decide the prongs in order. Failure to meet either is close enough, and the panel held the second prong unmet.
When the stop occurred, it was not clearly established that the officer’s actions violated the passenger’s First Amendment rights. So qualified immunity bars that claim.
That the court nonetheless addressed the issue of whether livestreaming the stop was protected, therefore, is a pretty big deal in the course of civil rights litigation. After all, by having said so, it’s now established the the conduct is protected, at least until another decision holds otherwise.
Sharpe has met his initial burden by showing that the alleged policy restricts his protected speech. Creating and disseminating information is protected speech under the First Amendment. Sorrell v. IMS Health Inc., 564 U.S. 552, 570 (2011). “‘[A] major purpose of’ the First Amendment ‘was to protect the free discussion of governmental affairs.’” Ariz. Free Enter. Club’s Freedom Club PAC v. Bennett, 564 U.S. 721, 755 (2011) (quoting Buckley v. Valeo, 424 U.S. 1, 14 (1976) (per curiam)). And other courts have routinely recognized these principles extend the First Amendment to cover recording—particularly when the information involves matters of public interest like police encounters.
The argument against this fairly banal discussion of protected speech was that by livestreaming the stop, Sharpe was broadcasting to others its occurrence and location, such that others could come to create a threat to officer safety. In the scheme of magic legal phrases, “officer safety” is one of the most powerful incantations to get a court to bend over backwards to ignore constitutional rights in favor of eliminating any risk, no matter how theoretical or attenuated, to a cop. Not this time.
The Town purports to justify the policy based on officer safety. According to Defendants, livestreaming a traffic stop endangers officers because viewers can locate the officers and intervene in the encounter. They support this claim by arguing, with help from amici, that violence against police officers has been increasing—including planned violence that uses new technologies. On Defendants’ view, banning livestreaming prevents attacks or related disruptions that threaten officer safety.
This officer-safety interest might be enough to sustain the policy. But on this record we cannot yet tell. There is “undoubtedly a strong government interest” in officer safety. Riley v. California, 573 U.S. 373, 387 (2014). And risks to officers are particularly acute during traffic stops. See Maryland v. Wilson, 519 U.S. 408, 414 (1997); Michigan v. Long, 463 U.S. 1032, 1047 (1983). But even though the Town has a strong interest in protecting its officers, Defendants have not done enough to show that this policy furthers or is tailored to that interest. Nor is that gap filled here by common sense or caselaw. See Reynolds, 779 F.3d at 228–29. So we cannot conclude, at this stage, that the policy survives First Amendment scrutiny.
The decision offers no insights into why officer safety fell short this time, merely holding that it did. The dissent by Judge Paul Niemeyer digs into the issue.
I write separately because the majority opinion hardly acknowledges the role of the Fourth Amendment in the relevant analysis and the relationship of the Fourth Amendment to other constitutionally protected rights, including First Amendment rights. Yet, the issues in this case arose in the context of a lawful Fourth Amendment seizure — a traffic stop — during which a person seized refused to obey the order of law enforcement officers to cease using a cell phone to communicate with others during the course of the stop. The restriction on cell-phone use was thus an aspect of the seizure, and therefore the lawfulness of the restriction is regulated by the Fourth Amendment and its jurisprudence recognizing that, when conducting traffic stops, law enforcement officers may intrude on the liberty interests of those who have been stopped, so long as the intrusion is reasonable.
As Judge Niermeyer notes, this is a “nuanced” shift in the issue before the court, whether the test of the town’s policy and officer’s order should be Fourth Amendment “reasonableness” or First Amendment strict scrutiny. And indeed, in the course of a lawful stop and seizure, courts have almost always deferred to the judgment of cops on the scene under a reasonableness standard.
What makes this significant, aside from it being the Fourth Circuit of all courts, is that it addresses not only the issue of recording a police stop, but the technology of livestreaming it. It’s premature to say that the court has conclusively established that the right to livestream a stop is protected, but this is a huge first step that the court didn’t need to do, and yet did.