Appeals Court Says Police Can’t Ban Passenger in Traffic Stop from Livestreaming Based on Vague Officer Safety Concerns

February 7, 2023

The Fourth Circuit ruled today in Sharpe v. Winterville Police Department that livestreaming a traffic stop is protected First Amendment speech and that police cannot prevent a passenger in a stopped car from livestreaming a traffic stop based on a vague concern for officer safety. EPIC filed an amicus brief in the case supporting Sharpe’s right to livestream the traffic stop.

Sharpe sued the Winterville Police Department and two Winterville police officers after the officers forcibly grabbed Sharpe’s phone and threatened him with jailtime for livestreaming his experience as a passenger during a traffic stop on Facebook Live. The defendants argued that a vague concern for officer safety during a traffic stop justified the ban on livestreaming. The district court agreed and dismissed the case, finding that passengers do not have a First Amendment right to livestream a traffic stop. 

The Fourth Circuit now reverses the district court decision. The court first found that “livestreaming a police traffic stop is speech protected by the First Amendment.” The court then found that Sharpe adequately alleged that the town of Winterville has a policy of preventing people in stopped cars from livestreaming the stop and that this policy violates the First Amendment. The court said that “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.” Sharpe’s claim against the town will return to the district court, where more fact finding will be required to determine whether the town has a policy banning livestreaming during traffic stops and whether the policy violates the First Amendment. The Fourth Circuit did, however, find that a claim against one of the officers could not go forward because Sharpe’s First Amendment right was not well established by caselaw at the time of the stop.  

EPIC’s amicus brief described how livestreaming is the newest method of the long-running, First-Amendment-protected practice of “copwatching.” Copwatching is an activity in which members of overpoliced communities peaceably watch citizen-police encounters “to hold police accountable for misconduct and to increase the safety of those policed.” EPIC also explained that 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.” Finally, EPIC explained that banning passengers from communicating information about their traffic stop in real-time is impracticable 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.” 

EPIC regularly files amicus briefs protecting freedom of expression and constitutional rights in using new technologies.

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