Fourth Circuit Rules that the First Amendment May Protect a Vehicle Occupant’s Right to Livestream a Traffic Stop

Several years ago, two officers working for the Winterville Police Department stopped a car for a traffic violation. Dijon Sharpe was a passenger in the vehicle. Sharpe had some prior negative interactions with police, so he began using his phone to livestream the stop on Facebook Live. One of the officers saw what Sharpe was doing and attempted to grab the phone, saying “We ain’t gonna do Facebook Live, because that’s an officer safety issue.” Sharpe held on to the phone and continued to livestream the stop. One of the officers told him that recording the stop was fine, but that livestreaming was not permissible and that “in the future,” if he attempted to livestream a stop, his phone would be taken from him. Sharpe subsequently sued, contending that the officers violated his First Amendment rights by trying to prevent him from livestreaming the stop. A federal district court dismissed his complaint. Sharpe appealed, and the Fourth Circuit recently issued a significant opinion in the case. Read on to find out what the court said.

The district court’s ruling. Before we get to the Fourth Circuit’s opinion, let’s take a closer look at the district court’s disposition of the case. That court issued two pertinent orders. The first, Sharpe v. Winterville Police Department, 480 F.Supp.3d 689 (E.D.N.C. Aug. 20, 2020), contains three main points:

  • The Winterville Police Department is not a legal entity separate from the Town of Winterville and therefore is not a proper defendant.
  • Qualified immunity protected the officers from being sued in their individual capacities, as there was “no precedent from the Supreme Court, the Fourth Circuit, or the Supreme Court of North Carolina that clearly established” the right to livestream a traffic stop at the time the stop took place. The district court distinguished a number of federal circuit court cases involving the right to record police on the grounds that livestreaming goes beyond recording and more clearly implicates officer safety concerns.
  • Although the defendants did not move to dismiss Sharpe’s claims against the officers in their official capacity, the court expressed severe doubt about the viability of those claims.

The second order, Sharpe v. Ellis, 2021 WL 2907883 (E.D.N.C. July 9, 2021) (unpublished), dismissed the official capacity claims. The most significant portion of the order concluded that “Sharpe’s claim fails because the alleged policy survives intermediate scrutiny.” Specifically, viewing the alleged policy against livestreaming as a time, place, and manner restriction on speech, the district court determined that the policy was justified in light of the safety concerns associated with traffic stops: “Given the substantial officer and public safety interest, the policy achieves the government’s substantial interest by increasing officers’ command of those inside the stopped car during the traffic stop by removing features such as live video, real-time commenting, and geolocation data, from being used from inside the stopped car to coordinate an attack on the officers and the public.”

The Fourth Circuit’s opinion. Sharpe appealed. The Fourth Circuit’s opinion is Sharpe v. Winterville Police Department, __ F.4th __, 2023 WL 1787881 (4th Cir. Feb. 7, 2023). The two judges in the majority held (1) that qualified immunity protects the officers in their individual capacities for the reasons given by the district court, (2) that livestreaming generally is expressive conduct under the First Amendment as “[r]ecording police encounters creates information that contributes to discussion about governmental affairs,” and “livestreaming disseminate[s] that information,” and (3) that a prohibition against livestreaming might still be permissible if it serves an important enough interest and is sufficiently tailored. Because the case was dismissed by the district court at the pleading stage, there was no factual record beyond the allegations of the complaint. The Fourth Circuit therefore said that it “cannot yet tell” whether the “officer-safety interest [is] enough to sustain the policy,” and the case was remanded for further proceedings.

The third judge on the panel – Judge Niemeyer – expressed the view that because the conduct at issue took place during a traffic stop, it should be analyzed under the Fourth Amendment, not the First. He described the applicable law as “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.” And he suggested that the issue presented by this case is whether an officer conducting a traffic stop “may lawfully prohibit the person detained from conducting electronic communications with others.” Judge Niemeyer’s opinion did not fully answer that question, agreeing that the matter should be addressed on remand, though his opinion suggests that he is inclined to think that the answer is yes.

Comment and analysis.

This case doesn’t fully settle the controversy. This case has attracted some attention from the mainstream media, including articles with headlines like First Amendment Protects Right to Livestream Police Officers. That’s an oversimplification. The court did rule that livestreaming is speech and so restrictions on it must comply with the First Amendment. But the court left for another day whether Winterville’s alleged policy actually violates the First Amendment. If the town is able to muster evidence that livestreaming poses unique dangers to police, the court may rule that prohibitions on livestreaming are constitutional.

Furthermore, the court need not take an all-or-nothing approach. For example, it might conclude that livestreaming police activity generally is permissible, subject to certain exceptions. The town might highlight potential scenarios like a person using a livestream expressly to invite others to come to the location and interfere with the police, or a person using a livestream to reveal police activity that is part of a larger operation where the livestream might tip off suspects in other locations and allow them to flee or to destroy evidence. A court might also consider whether police can prevent a person from livestreaming if the person becomes so distracted by the process of livestreaming or by the comments received through the livestream that he or she struggles to respond appropriately to officers’ questions and commands.

Forums and standards. How a court evaluates the scenarios above will depend in part on what level of scrutiny the court applies. One aspect of Sharpe that has attracted some criticism is the fact that the majority does not say what level of scrutiny it is applying. Is a prohibition on livestreaming a content-based speech restriction that must survive strict scrutiny? Or is it a time, place, and manner limitation that faces only intermediate scrutiny? Perhaps a future opinion will clarify the court’s approach.

The proper legal standard may also depend on where the livestreaming takes place. Sharpe, and most of the cases courts have considered so far, have arisen on the public streets and sidewalks, which are “traditional public forums” for purposes of First Amendment law. Restrictions on expressive activity are more easily justified in locations that are not traditional public forums, such as the inside of a police station, and any decision about livestreaming on the public streets may not apply to more restricted locations. Interested readers can learn more about the classification of different locations in this blog post by my colleagues Kristi Nickodem and Kristina Wilson.

Will the Supreme Court put all this to bed once and for all? I doubt that it will do so anytime soon. As to Sharpe in particular, I have no reason to believe that either side will ask the Court to review the case at this stage. Even if they did, I suspect the Court would not take it given the potential to have a better developed record after remand. After the remand and any subsequent appeal to the Fourth Circuit, the case will be more ripe for review, but whether it will hold any allure for the Court will depend in part on whether other circuits have addressed the issue differently. If other cases haven’t arisen, or if the circuits mostly agree on how to address them, the case likely won’t be attractive to the Court.

What about recording without livestreaming? Sharpe is the only federal appellate case addressing the First Amendment and livestreaming the police. But there are quite a few cases now about recording the police. This article rounds up the cases and reports that the First, Third, Fifth, Seventh, Ninth, Tenth, and Eleventh Circuits have identified a right to record the police. Sharpe itself notes that “the First Amendment . . . cover[s] recording—particularly when the information involves matters of public interest like police encounters.” Although Sharpe did not involve mere recording and the court did not directly address whether recording alone might ever properly be limited, it is much harder to imagine scenarios where passive recording of an encounter would implicate government interests weighty enough to prohibit recording. My impression is that most officers these days don’t bat an eye when someone pulls out a cell phone to record them, and that seems to me to be the right approach under the law.

Finally, stay tuned. If there are further important developments in this interesting case, you’ll be able to read about them here.