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 record.”

This is consistent with several other circuits that have held that the First Amendment protects the recording of on-duty police: First, Third, Fifth, Seventh, Eighth, Ninth, Tenth, and Eleventh. The Fourth Circuit (covering Maryland, Virginia, West Virginia, North Carolina, and South Carolina) has rightly expanded the First Amendment rights of individuals living within its jurisdiction.

The Fourth Circuit Should Have Applied Strict Scrutiny

Although the Fourth Circuit held that a First Amendment right exists to livestream traffic stops, it arrived at that conclusion using a vague scrutiny analysis that generally considered the governmental interest in officer safety and how “tailored” the prohibition on livestreaming is to that interest.

The court declined to decide whether prohibiting livestreaming is a content-based restriction, requiring strict scrutiny—the highest standard of First Amendment analysis, under which most governmental speech restrictions are struck down—or is a content-neutral restriction requiring intermediate scrutiny, a less rigorous standard of review.

We believe that strict scrutiny should apply because prohibiting livestreaming (or recording) police encounters is based on content—the actions of police officers specifically. The court should have created a high bar for the government here by holding that strict scrutiny is the appropriate standard of review.

This is important because this case is only at the pleading stage—that is, Sharpe’s allegations were considered, but no evidence has yet been proffered by either side. When this case goes back to the district court, it’s possible that the city will provide compelling evidence that concerns around real-time officer safety are significant in the context of livestreaming. The defendants argue that “livestreaming a traffic stop endangers officers because viewers can locate the officers and intervene in the encounter.” As the Fourth Circuit stated, “This officer-safety interest might be enough to sustain the policy. But on this record we cannot yet tell.” If the Fourth Circuit had explicitly held that the more rigorous standard of strict scrutiny applies, it would have made it more likely that Sharpe will prevail on his First Amendment claim in the district court.

The upside is that the Fourth Circuit held that Sharpe’s First Amendment claim survives regardless of whether the prohibition on livestreaming traffic stops is content-based or content-neutral—meaning that the government’s interest in officer safety is still a weak one even under a lower, more deferential (to the government) standard of review.

We agree that the city’s attempt to evade liability should fail under any standard of review. While officer safety is important, livestreaming police does not endanger officer safety. Police have long been trained to manage unfolding events that are subject to live media coverage, including political protests and traffic chases. If an officer has individualized suspicion that a particular motorist is using their device to summon an accomplice to undermine the officer’s control of the scene, then the officer might seize the device, whether the motorist is communicating by text message or livestream. But livestreaming is not per se dangerous, and First Amendment rights do not yield to speculative concerns.

“Controversial” Doctrines Thwart the Vindication of Constitutional Rights

A very disappointing aspect of the case is that the Fourth Circuit thwarted Sharpe’s ability to hold the individual officers accountable. And Sharpe’s ability to hold the city of Winterville accountable for the officers’ First Amendment violation isn’t guaranteed.

Qualified Immunity Strikes Again

The Fourth Circuit held that qualified immunity bars Sharpe from obtaining monetary compensation (“damages”) directly from the officers for the constitutional violation, finding that it was not “clearly established” at the time of the traffic stop that prohibiting Sharpe from livestreaming violated the First Amendment.

Notwithstanding seven other circuits generally protecting the right to record the police, the court stated that there was no controlling or persuasive authority that held “with specificity” that the First Amendment protects livestreaming of one’s own traffic stop.

EFF opposes qualified immunity, and there’s a growing movement to overrule the judicially created doctrine that allows government officials to avoid accountability for constitutional violations.

Municipal Accountability Is Not Guaranteed

Sharpe also seeks to hold the city of Winterville responsible for the actions of its employee police officers. Although the Fourth Circuit held that Sharpe’s First Amendment claim against the city survives and that the case must go back to the district court, it’s not guaranteed that Sharpe will prevail against the city.

Unfortunately, to require a local government to pay damages, it’s not enough that an on-duty local government employee violated an individual’s constitutional rights. According to another judicially created doctrine, municipalities can’t be held vicariously liable for the constitutional violations of their employees. To hold a government entity responsible, an employee’s constitutional violation must have been pursuant to an official municipal “policy or custom,” according to the U.S. Supreme Court in a wrongly-decided case called Monell v. Department of Social Services of the City of New York (1978).

Thus, Sharpe must provide evidence, when the case goes back to the district court, that the officers interfered with the livestreaming of his own traffic stop pursuant to an official police department—and by extension, city—policy.

The Fourth Circuit found Sharpe’s allegation of such a policy plausible, stating, “It is a reasonable inference that absent a policy the two officers would not have taken the same course.” But this remains to be established in the trial court.

The Fourth Circuit rightly acknowledged the frustration that many litigants feel when seeking justice for their constitutional rights being violated:

Plaintiffs seeking redress … for a violation of their constitutional rights must walk through a narrow gate. The doctrines of qualified immunity and Monell liability for local governments substantially diminish their chances. Both doctrines are controversial. They have been criticized for being atextual, ahistorical, and driven by policy considerations. But they are also binding.

We need new legislation both to end qualified immunity, which wrongly protects law-breaking officers, and to end municipal immunity, which wrongly protects the cities that employ them. When police violate digital rights and other human rights, the victims must be made whole with damages, payable by both the officers and the city. This will incentivize officers to respect the Constitution and incentivize cities to ensure that they do so. And this will ensure that courts continue to develop constitutional law that meets the new challenges posed by emergent technologies.