Live streaming of traffic stops is a First Amendment problem, court says
But Dijon Sharpe, who sued the city of Winterville, North Carolina, and one of its police officers after he was threatened with arrest in 2018 for broadcasting a traffic stop on Facebook Live, still faces hurdles. in his case.
The court said the individual officer who told Sharpe to stop the recording is protected from trial by qualified immunity because at the time of the incident “it was not clearly established that the First Amendment prohibited an officer to prevent a passenger who is being pulled over from live-streaming their traffic stop.
Thus, Sharpe must prove that the officer was following city policy, not his own interpretation of the law, to pursue the prosecution. And that policy could survive as a restriction on speech, the court said, if explained as narrowly tailored to serious government interests.
Threatened with prison for live traffic checks, he sued
The city’s earlier argument that “violence against police officers has increased – including planned violence that uses new technologies” was found insufficient by the court.
It was the first time a circuit court ruled on whether traffic stop passengers could be barred from recording police or whether live streaming was different from just recording.
The ruling was written by Judge Julius N. Richardson, who was appointed by President Donald Trump, and joined by Michael S. Nachmanoff, who was appointed by President Biden to the DC Circuit serving on the panel.
Sharpe, 28, was told he could record but not live stream, “because it’s an officer safety issue,” according to the court filing. In an interview last year, he explained that he preferred live streaming because it made it clear the video was new and unedited and prevented a recording from being deleted before it was released.
“Live police interactions are absolutely necessary and fully within the law,” he said at the time.
Only one of the three judges on the panel that heard the case ruled that Sharpe’s restriction of cellphone use should not be considered a First Amendment free speech issue, but a Fourth Amendment seizure — a matter widely debated at the of the pleading last year.
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“When conducting traffic stops, law enforcement officers may infringe upon the liberty interests of those who have been arrested, as long as the intrusion is reasonable,” said Judge Paul V. Niemeyer, a person appointed by Reagan.
Richardson and Nachmanoff rejected this argument.
“Government action may pass scrutiny under the Fourth Amendment but still offend the First,” they wrote. “The Fourth and First Amendments do not authorize government action. They limit them. So to conclude that certain police intrusions on liberty are Fourth Amendment compliant does not bless those actions as permissible restrictions on speech.