On February 7, 2023, the Fourth Circuit Court of Appeals decided Sharpe v. Winterville Police Dep’t[i], in which the court examined whether the police violate the First Amendment when they stop a person from livestreaming video of a traffic stop.  The relevant facts of Sharpe are as follows:

Officer Myers Helms of the Winterville Police Department tried to stop passenger Dijon Sharpe from livestreaming his own traffic stop. Sharpe started streaming to Facebook Live shortly after the car he was riding in was pulled over. Officer Helms noticed this activity and attempted to take Sharpe’s phone, reaching through Sharpe’s open car window. Officer Helms and his partner Officer William Ellis then told Sharpe he could record the stop but could not stream it to Facebook Live because that threatened officer safety. The officers also made it clear that if Sharpe tried to livestream a future police encounter, he would have his phone taken away or be arrested.[ii]

Sharpe filed suit against the officers and the Town of Winterville Police Department for violating his rights under the First Amendment by prohibiting the livestreaming of a traffic stop. The officers and the city filed a motion for summary judgment, and the district granted their motions and dismissed the suit.  Sharpe appealed to the Fourth Circuit Court of Appeals.

First, the court of appeals noted that Sharpe made a plausible claim that the Town of Winterville has a policy of preventing an occupant of a stopped vehicle from livestreaming a traffic stop in violation of the First Amendment.  This claim is evidenced by the following: (1) an officer attempted to seize his phone after learning that Sharpe was livestreaming the traffic stop on Facebook Live; (2) the officer told him that if he livestreamed traffic stops in the future, the police would take his phone or arrest him; and (3) both officers justified their action and on the same officer safety reasoning.

After a plaintiff states a plausible claim for the Town must justify its policy by proving that the policy is tailored to meet “weighty enough interests.”  The court of appeals stated

The Town’s speech regulation only survives First Amendment scrutiny if Defendants demonstrate that: (1) the Town has weighty enough interests at stake; (2) the policy furthers those interest; and (3) the policy is sufficiently tailored to furthering those interests. See Reynolds, 779 F.3d at 228-29.[iii]

Thus, the burden now shifted to the Town to justify their regulation.  The Town did point to the fact the officers told Sharpe he could video the traffic stop, but not livestream the stop.  They attempted to justify this by officer safety concerns.  The Town argued that increased violence against police combined with livestreaming and the ability to determine the stop location could enable viewers to come to the scene and disrupt or attack the officers.  The court of appeals stated

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, 134 S. Ct. 2473, 189 L. Ed. 2d 430 (2014). And risks to officers are particularly acute during traffic stops. See Maryland v. Wilson, 519 U.S. 408, 414, 117 S. Ct. 882, 137 L. Ed. 2d 41 (1997); Michigan v. Long, 463 U.S. 1032, 1047, 103 S. Ct. 3469, 77 L. Ed. 2d 1201 (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. See Billups, 961 F.3d at 687. Instead, we hold that Sharpe has plausibly alleged that the Town adopted a livestreaming policy that violates the First Amendment.[iv]

Thus, since Sharpe made a plausible claim, summary judgment for the Town is reversed.

The court of appeals next examined whether the officer was entitled to qualified immunity on the suit.  The court of appeals discussed qualified immunity and noted that to defeat qualified immunity, a plaintiff must show (1) that his constitutional rights were violated and (2) that the law was clearly established such that a reasonable officer in the same situation would have known he was violating the plaintiff’s rights.  A right is clearly established when there is sufficient precedent to put a reasonable officer on notice that the conduct is a violation of a person’s rights.

Having already decided above that Sharpe has made a plausible claim that the Town’s alleged policy may violate the First Amendment which would satisfy the first part of the qualified immunity analysis, the court of appeals then examined whether court precedent at the time of the incident with Sharpe clearly established Sharpe’s right to livestream his traffic stop.  The court stated

The First Amendment right here is a passenger’s alleged right to livestream their own traffic stop. And there is no “controlling authority” in this jurisdiction that establishes Sharpe had this right when his car was pulled over. See Booker v. S.C. Dep’t of Corr., 855 F.3d 533, 538 (4th Cir. 2017). Sharpe’s attempt to construct such controlling authority fails. He cites an array of cases from various contexts, including from election law, Ariz. Free Enter. Club’s Freedom Club PAC v. Bennett, 564 U.S. 721, 131 S. Ct. 2806, 180 L. Ed. 2d 664 (2011), access to the courts, Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 100 S. Ct. 2814, 65 L. Ed. 2d 973 (1980), and medical data, Sorrell v. IMS Health Inc., 564 U.S. 552, 131 S. Ct. 2653, 180 L. Ed. 2d 544 (2011). These cases provide general guidance about First Amendment doctrine. But they offer no concrete direction to the reasonable officer tasked with applying that doctrine to the situation Officer Helms confronted. So they do not clearly establish the specific right at issue. See Mullenix, 577 U.S. at 12.

Nor is there any consensus of persuasive authority to establish this right. See Lott, 372 F.3d at 280. None of Sharpe’s out-of-jurisdiction case citations address a passenger livestreaming a police officer during their own traffic stop. Instead, they generally are about video recordings, not livestreams. See, e.g., Turner v. Lieutenant Driver, 848 F.3d 678, 690 (5th Cir. 2017) (discussing the “right to record the police”). And the people doing the recording tend to be bystanders, not the subjects of the stop itself. See, e.g., Fields v. City of Philadelphia, 862 F.3d 353, 359-60 (3d Cir. 2017) (discussing “bystander videos”).[v]

Thus, the court pointed out the fact that most cases involving a person’s right to video the police involved bystanders who video record the police, rather than an occupant of a vehicle livestreaming their own traffic stop.  As such, the court of appeals held that the law was not clearly established and the officer was entitled to qualified immunity.

In summary, the court of appeals held that Sharpe made a plausible claim that the Town has a policy against allowing livestreaming a person’s own traffic stop and that policy violates the First Amendment.  As such, the claim against the Town can proceed, and Sharpe must show that such policy does, in fact, exist.

If Sharpe can show the policy exists, the Town will have an opportunity to show that the policy does not violate the First Amendment because (1) the Town has weighty enough interests at stake; (2) the policy furthers those interest; and (3) the policy is sufficiently tailored to furthering those interests.

Lastly, the claim against the officer failed because the officer is entitled to qualified immunity from suit since the law was not clearly established that the officer’s action violated Sharpe’s rights under the First Amendment.

Note:  Court holdings can vary significantly between jurisdictions.  As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases.  This article is not intended to constitute legal advice on a specific case.

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Citations

[i] No. 21-1827 (4th Cir. Decided February 7, 2023)

[ii] Id. at 1-3

[iii] Id. at 8 (emphasis added)

[iv] Id. at 9-10

[v] Id. at 11-12 (emphasis added)

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