Whether a passenger in a car has a First Amendment right to livestream a traffic stop.
Public places are traditional hubs of free speech activity, but the police often try to limit people’s ability to record and broadcast police activities that occur in public. Some courts have recognized a First Amendment right to record and/or livestream the police when they are in public, but the Fourth Circuit—where this case is being heard—has not yet done so.
Recording the police is part of a long history of community police oversight. Individuals and community groups have engaged in “copwatching” since the Black Panthers pioneered the activity in the 1960s. Copwatching enables communities to document and deter police abuse. Recording the police’s public actions promotes democratic accountability, creates a record of potentially high-stakes encounters, and provides important information to the public.
Smartphones make everyone a potential copwatcher and enables them to broadcast their recordings in real-time on social media, a practice also known as livestreaming. Smartphone recording recently enabled nationwide discussion and protest over police abuse after the murder of George Floyd. In that case, bystanders’ recordings disproved the Minneapolis Police Department’s initial labeling of the murder as a “medical incident during police interaction.”
In this case, the police pulled over a car for a minor traffic infraction. Dijon Sharpe, a passenger in the car and the plaintiff in this case, began livestreaming the encounter on Facebook Live. The officers threatened him with jailtime for livestreaming and tried to forcibly tear his phone from his hands. Sharpe sued the officers and the Town of Winterville, claiming, among other things, a violation of his First Amendment rights.
The district court dismissed the case against the officers and the Town. The court dismissed the suit against the officers, explaining that they enjoyed qualified immunity because the right to record police activity was not clearly established at the time of the incident. The court then dismissed the suit against the Town, explaining that vehicle passengers do not have a constitutional right to livestream the police in public. The court singled out passengers as a group prohibited from livestreaming because of a hypothetical scenario in which their social media contacts could rush to the scene and attack the officers.
EPIC filed an amicus brief supporting the plaintiff’s right to live broadcast the police. EPIC described how livestreaming is the newest method of copwatching, a socially important activity protected by the First Amendment. Just like older forms of copwatching, livestreaming enables community members “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.”
United States Court of Appeals for the Fourth Circuit (No. 21-1827)