In a partial victory for police accountability, the U.S. Court of Appeals for the Fourth Circuit held that the First Amendment protects a passenger who livestreams the traffic stop of the car he is traveling in. EFF filed an amicus brief in Sharpe v. Winterville in 2021 in support of the plaintiff. Unfortunately, the Fourth Circuit’s opinion is not a total win for First Amendment rights because the court curtailed the plaintiff’s ability to hold the individual officers accountable.
After police officers tased, choked, and severely beat Dijon Sharpe during a traffic stop, he decided that next time he was in a car that was pulled over, he would livestream and record the encounter. Ten months later, in October 2018, Sharpe, sitting in the passenger seat of a stopped car, took out his phone and started livestreaming on Facebook.
When an officer saw that he was livestreaming, he grabbed Sharpe and tried to take the phone. The officer explained that Sharpe was free to record the encounter, but he could not livestream due to supposed concerns about officers’ real-time safety (a policy later ascribed to the city of Winterville, NC). Sharpe sued to vindicate his First Amendment rights.
The Good News: The Fourth Circuit Held That the First Amendment Protects the Right to Livestream and Record Police Officers
It’s great that the Fourth Circuit held that individuals have a First Amendment right to livestream their own traffic stops. The court rightly acknowledged, “Creating and disseminating information is protected speech under the First Amendment.”
In so holding, the Fourth Circuit stated “we agree” with other courts that have recognized that the First Amendment “cover[s] recording—particularly when the information involves matters of public interest like police encounters … Recording police encounters creates information that contributes to discussion about governmental affairs. So too does livestreaming disseminate that information, often creating its own reco
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