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Fourth Circuit is first to rule that livestreaming police is protected speech, but questions remain about officer safety

Police need to understand what law enforcement interests might outweigh the free speech protection of livestreaming – and under what circumstances

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Livestreaming is coming to your community, if it hasn’t already. Plan for it now.

It is well-established that recording police is protected by the First Amendment. But a U.S. appeals court has ruled for the first time that livestreaming in real-time is also protected speech.

However, that wasn’t the end of the court’s analysis. That means police need to understand what law enforcement interests might outweigh the free speech protection of livestreaming – and under what circumstances.

The facts

Dijon Sharpe was a passenger in a car properly stopped for a traffic violation by Winterville (North Carolina) Officers Ellis and Helms. Helms determined Sharpe was livestreaming the stop and tried unsuccessfully to grab Sharpe’s phone. He explained that Sharpe could record but livestreaming was a “safety issue” because viewers could locate the stop in real-time and come interfere.

Nonetheless, Sharpe kept livestreaming and neither Helms nor Ellis made further efforts to stop him. Ellis did tell Sharpe if he tried to livestream in the future, his phone would be taken, and he’d be arrested.

Claiming his First Amendment rights were violated, Sharpe sued the officers in their individual capacity, and he sued the city of Winterville for having an unconstitutional policy.

The First Amendment claim

Numerous circuits have held that “recording” police is protected speech – the First, Third, Fifth, Seventh, Eighth, Ninth, Tenth and Eleventh. It wasn’t a big leap for the Fourth Circuit in Sharpe’s case to apply those decisions to livestreaming. As the court reasoned,

Recording police encounters creates information that contributes to discussion about governmental affairs. So too does livestreaming disseminate that information, often creating its own record.”

The officers’ liability

Sharpe argued that given how well-established it was that recording police was protected speech, the officers should’ve known that protection applied to livestreaming. The Fourth Circuit disagreed, holding “it was not clearly established” at the time of the stop that passengers have a right to livestream, which the court recognized was different than recording.

Accordingly, the court granted the officers “qualified immunity” for their conduct.

The city’s liability

While the officers were dismissed from Sharpe’s lawsuit, the city of Winterville wasn’t. The circuit court sent the case back to the district court for further fact-finding and rulings.

The city’s liability depends on whether the officers interfered with the livestreaming pursuant to an official police department (and by extension city) policy.

Regarding Sharpe’s claim such a policy existed, the Fourth Circuit said,

It is a reasonable inference that absent a policy the two officers would not have taken the same course.”

But the district court will have to determine that based on evidence. If the court decides such a policy did exist, it will have to decide whether the policy is constitutional.

What next

DISCLAIMER: This is not intended, nor should it be taken, as legal advice. This is IMHO stuff.

Livestreaming is coming to your community, if it hasn’t already. Plan for it now. Does your agency have a policy that addresses livestreaming? If not, bring this to the attention of your brass. If you’re brass, discuss this with legal counsel. Agencies need a policy that is constitutional.

Toward that end, the Fourth Circuit in Sharpe concluded that “officer safety” interests might justify curtailing livestreaming. However solicitous of officer safety the Fourth Circuit and our U.S. Supreme Court have been, I don’t think a bald assertion of “officer safety” will support a blanket policy of prohibiting livestreaming. Officers will need to articulate specific facts in specific incidents that warrant restricting a citizen’s First Amendment right to livestream.

The agency’s policy and officers’ articulable facts should take into account arguments made by Sharpe and in amicus curiae briefs filed by organizations like the Electronic Privacy Information Center and the Electronic Frontier Foundation. These include:

  • Stopping passengers from livestreaming traffic stops serves no legitimate purpose because police “conduct stops on streets and highways where hundreds of people may pass during the course of a stop” and where “[c]opwatching groups, journalists, and other bystanders can communicate essentially the same information as a passenger in a traffic stop.”
  • Banning passengers from livestreaming also serves no practical purpose because “[p]eople in a stopped car can communicate a traffic stop’s existence and exact location through a text message, phone call, or social media before the officer even approaches their car.”
  • There’s been no evidence that livestreaming endangers officers.

Then there’s the fact that the Fargo (North Dakota) police department decided it would livestream traffic stops in the spirit of community outreach. Think how that might be used to undercut the argument that livestreaming increases the danger to officers.

BOTTOM LINE: Get ahead of this issue. The Fourth Circuit has specifically held that livestreaming is protected speech. That means if officers do violate that right qualified immunity is less likely to protect them absent articulable, evidence-based officer safety concerns.

NEXT: On-Demand Webinar: Legal pitfalls on patrol: Lessons from case law

As a state and federal prosecutor, Val’s trial work was featured on ABC’S PRIMETIME LIVE, Discovery Channel’s Justice Files, in USA Today, The National Enquirer and REDBOOK. Described by Calibre Press as “the indisputable master of entertrainment,” Val is now an international law enforcement trainer and writer. She’s had hundreds of articles published online and in print. She appears in person and on TV, radio, and video productions. When she’s not working, Val can be found flying her airplane with her retriever, a shotgun, a fly rod, and high aspirations. Visit Val at www.valvanbrocklin.com and info@valvanbrocklin.com

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