A federal appeals court ruled this week that live-streaming traffic stops is protected speech under the First Amendment after a North Carolina man challenged police claims that doing so is barred for safety reasons.
But Dijon Sharpe, who sued the town of Winterville, N.C., and one of its police officers after he was threatened with arrest in 2018 for streaming a traffic stop to Facebook Live, still faces obstacles in his case.
The court said the individual officer who told Sharpe to stop recording is protected from the lawsuit by qualified immunity, because at the time of the incident “it was not clearly established that the First Amendment prohibited an officer from preventing a passenger who is stopped from livestreaming their traffic stop.”
So Sharpe must prove that the officer was following a town policy, not his own interpretation of the law, to continue the suit. And that policy could survive as a restriction on speech, the court said, if it’s explained as narrowly tailored to serious government interests.
The precedents limiting liability by the officer and the town “have been criticized for being atextual, ahistorical, and driven by policy considerations,” the court wrote. “But they are also binding.”
The town’s earlier argument that “violence against police officers has been increasing — including planned violence that uses new technologies” was deemed insufficient justification by the court.
The case was the first time a circuit court has ruled on whether passengers can be blocked from recording police during traffic stops or on whether live-streaming is different from merely recording.
The decision 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 a district court judgeship in the Eastern District of Virginia and was sitting on the panel.
Sharpe, 28, was told he could record but not live-stream, “because that’s an officer safety issue,” according to the court record. In an interview last year, he explained that he preferred live-streaming because it made clear that the video was new and unedited and prevented a recording from being deleted before release.
“Live-streaming police interactions is very much needed and very much within the law,” he said at the time.
Sharpe said after the ruling that it was a “great win” for the court to recognize the First Amendment right to live-stream but was frustrated by the way the ruling could shield both police and local governments from accountability.
“What I was looking to do was looking to get it signed, sealed, delivered, black and white, so that we really could have that as a textbook law,” he said. “We won the battle, but the war is still going on.”
Only one of the three judges on the panel that heard the case ruled that the restriction on Sharpe’s cellphone use should be seen not as a free-speech issue under the First Amendment, but as a seizure under the Fourth Amendment — an issue debated extensively at oral argument last year.
“When conducting traffic stops, law enforcement officers may intrude on the liberty interests of those who have been stopped, so long as the intrusion is reasonable,” Judge Paul V. Niemeyer, a President Ronald Reagan appointee, argued.
Richardson and Nachmanoff rejected that 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 actions. They limit them. So finding that certain police intrusions on liberty comply with the Fourth Amendment does not bless those actions as permissible restraints on speech.”
An earlier version of this article incorrectly said Judge Michael S. Nachmanoff was appointed to the D.C. Circuit. He was appointed to the U.S. District Court for the Eastern District of Virginia. This article has been corrected.