Last week, the U.S. Court of Appeals for the Fourth Circuit heard arguments in Sharpe v. Winterville Police Department, a case that, before the argument, everyone thought was about the right to contemporaneously record (and broadcast) police.
The case stems from a run-of-the-mill traffic stop in October 2018. Dijon Sharpe was a passenger in a car pulled over for a minor infraction. As the two police officers approached the car, Sharpe began filming the encounter with police on Facebook Live. The officers told Sharpe that he could record, but he could not livestream. The officers’ concern seemed to be that if Sharpe were permitted to concurrently broadcast his encounter, people would flock to the scene and overwhelm the officers. Sharpe refused to stop livestreaming and the situation escalated. (Sharpe asserts that there is no evidence in the record to support the officers’ stated concern.)
Sharpe filed a civil rights lawsuit against the officers and the Winterville Police Department, arguing that his First Amendment right to record police had been violated. In two opinions, a federal district court dismissed his claims, finding that the First Amendment categorically does not protect livestreaming.
But the judges on the appellate panel were more interested in a different question: What does the Fourth Amendment have to say about this? When an individual is “seized” by a police officer, can the officer lawfully prevent the person from recording the encounter without running afoul of the Constitution’s prohibition on unreasonable searches and seizures? This question — which barely showed up in the briefing — is analytically distinct from the question of whether an individual not in police custody has a First Amendment right to record the activity of the police. That’s because the Fourth Amendment contemplates that certain rights can be curtailed when law enforcement “seizes” you.
Judge Paul Niemeyer (a George H.W. Bush appointee and member of the panel) pointed out during oral argument that we expect that individuals give up their Second Amendment rights when the police pull them over. So, Judge Niemeyer asked, why not expect the same for their rights under the First Amendment?
Police can’t retaliate against someone — even when they are under police control — for screaming that their arrest is unlawful, but can they stop someone from using their phone to livestream the encounter? We think not, absent a real, non-hypothetical showing of potential risk to officers.
In a friend-of-the-court brief, the National Press Photographers Association, joined by the First Amendment Clinic at the University of Virginia School of Law (which is taught by Reporters Committee attorneys) and the Duke Law First Amendment Clinic, argued that the First Amendment protects a right to record police, and that right includes livestreaming. The brief argues that this right cannot be curtailed without good reason. Permitting police to stop all passengers from exercising this right during all traffic stops would substantially undermine the right. Further, the defendants in the case have offered no limiting principle that would prevent the same argument — that livestreaming a police encounter could lead to people learning the location of the stop — from being deployed by officers to interfere with a television crew recording a stop across the street.
In recent years, we have seen an uptick in arrests of journalists doing their jobs. A rule allowing police to stop people from exercising their right to record would pose a particular threat to reporters, who often broadcast live from scenes involving police. The court should reject this argument and protect the right to record.
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The Technology and Press Freedom Project at the Reporters Committee for Freedom of the Press uses integrated advocacy — combining the law, policy analysis, and public education — to defend and promote press rights on issues at the intersection of technology and press freedom, such as reporter-source confidentiality protections, electronic surveillance law and policy, and content regulation online and in other media. TPFP is directed by Reporters Committee attorney Gabe Rottman. He works with RCFP Staff Attorney Grayson Clary and Technology Press Freedom Project Fellow Emily Hockett.