Persons “livestreaming” (video recording an event and playing it in real time over a social media platform, often the popular Facebook Live) their interactions with government officials has become a very common occurrence over the last several years.  It often occurs when a person is being pulled over in their vehicle by the police, or when an angry parent is confronting a school principal outside a school.  People argue that they need the video “evidence” as proof of how they are being treated by the government employee, but oftentimes it seems from the video that the recorder is just trying to play to their remote audience, seeking affirmation in real time that they are being wronged – even if the audience has no real idea what is going on.  As the recorder spends less time listening to the government official and focuses more on interacting with their audience, the livestreaming can cause more disruption and create more safety issues than simple videoing does.

However, in Sharpe v. Winterville Police Department, ___ F.4^th ___, 2023 WL 1787881 (4^th Cir. 2023), the Fourth Circuit recently held that citizens have a right to livestream themselves being pulled over by the police during a traffic stop. Interestingly, the officers told the passenger who was livestreaming the encounter on Facebook Live that he could video record the stop, but not livestream it, because livestreaming increased the threat to officer safety by telling members of the community in real time where the incident was occurring, which might encourage viewers to come down and intervene in the encounter.

Although the Fourth Circuit noted that recording police encounters and livestreaming to disseminate that information are both protected by the First Amendment, those rights are not absolute, and the prohibition would be justified if the Town could show “weighty enough interests at stake,” that the policy furthers those interests, and that the policy is sufficiently tailored to further those interests.  While the Court agreed that “[t]here is undoubtedly a strong government interest in officer safety,” and that “risks to officers are particularly acute during traffic stops,” the case had been dismissed on the pleadings (i.e. with no evidence submitted to the court below), and the Fourth Circuit seemed a little skeptical that allowing videoing but prohibiting livestreaming was really necessary to protect the safety of the officers.  Ruling that “Sharpe has plausibly alleged that the Town adopted a livestreaming policy that violates the First Amendment,” the Court sent the case back to the trial court to further review the evidence and develop a more complete record. However, the Court did uphold the dismissal of the claims against the individual officers on the grounds of qualified immunity, finding that whatever the rule was as to livestreaming your own encounter with the police, it was not yet clearly established.

There were a significant number of briefs filed by amicus groups in this case, showing the high level of interest in this developing subject area, so it would not surprise me if the Town decides to appeal this issue to the Supreme Court.  Also, Judge Niemeyer wrote an interesting decision concurring in the judgment, in which he argued that the prohibition on livestreaming should have been analyzed under the Fourth Amendment’s reasonableness standard, as an aspect of a normal traffic stop during which police officers normally have the ability to assert much greater control over the situation than at other times.  It will be interesting to see if the Town pursues the Fourth Amendment angle of this case, or even if subsequent courts see this as an intersection of First and Fourth Amendment, requiring some sort of new or hybrid test.