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The right to record keeps inching its way through the courts

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  1. First Amendment
Most recently, the Fourth Circuit found that “livestreaming a police traffic stop is speech protected by the First Amendment."
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As we’ve written time and again, every federal court of appeals to address the question agrees: The First Amendment protects your right to film police officers engaged in the performance of their public duties. The U.S. Court of Appeals for the Fourth Circuit joined that chorus last week, signing on to a consensus that the FirstThirdFifthSeventhNinthTenth, and Eleventh Circuits have all already endorsed. That’s good news as far as it goes — but the court’s decision also underlines the unreasonable difficulty that members of the press and public still face in holding officers accountable when they violate the rights the First Amendment plainly guarantees.

The case, Sharpe v. Winterville Police Department, arose out of a traffic stop that the plaintiff, Dijon Sharpe, livestreamed from the passenger seat. (The Reporters Committee’s Emily Hockett previously recapped the contentious oral argument in this matter, as well as the friend-of-the-court brief filed by a press coalition.) The officers who had stopped the car insisted, oddly, that Sharpe was entitled to record their interaction but not to stream it in real time; citing officer safety, they tried to seize the device from Sharpe and threatened him with arrest if he didn’t stop the broadcast. Sharpe later sued both the officers and their department, arguing that the ban on livestreaming violated his First Amendment right to record the police.

The Fourth Circuit easily — even breezily — found that “livestreaming a police traffic stop is speech protected by the First Amendment,” pointing out that “[r]ecording police encounters creates information that contributes to discussion about governmental affairs.” The court therefore sent Sharpe’s claims against the department (which the district court had thrown out) back to the trial court for a more rigorous look at the town’s claimed interest in officer safety. So far, so promising. But when it came time to address the claims against the individual officers responsible, Sharpe ran into the wall that blocks too many civil rights suits: qualified immunity.

Qualified immunity protects state and local officials from personal liability for violating federal rights unless the right in question was “clearly established.” And as ready as the Fourth Circuit was to make clear that the First Amendment protects livestreaming, it was just as quick to conclude that a reasonable officer might not know that prohibiting livestreaming in this particular situation was unconstitutional. As we’ve argued in urging the Supreme Court to step in to provide clarity, this approach to slicing and dicing the constitutional question based on factual distinctions of questionable relevance — reasoning sometimes akin to granting officers immunity if they violate the First Amendment on a Wednesday when the key precedent took place on a Tuesday instead — threatens to leave the right to film unenforceable in practice. Without the deterrent effect of a meaningful damages remedy, it’s hard to see how a bare announcement that the press and public have a right to record will change officers’ behavior.

The Sharpe ruling is a step in the right direction, in that light, but a halting one. Too many courts of appeal have still managed to avoid ruling on whether the right to record exists; too many more have found creative reasons to avoid enforcing it when violated. At some point, the Supreme Court’s intervention will be necessary to make the right a practical reality nationwide.

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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.

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