Lawsuit asks whether livestreaming cops is protected by the First Amendment. It’s well-established that Americans have a First Amendment right to record police. But do we have the right to livestream that recording? That’s the central question in a case currently before a federal appeals court.
The question stems from a 2018 traffic stop in Winterville, North Carolina. When police pulled over a car in which Dijon Sharpe was a passenger, Sharpe whipped out his phone and started a Facebook Live stream.
One cop tried to grab Sharpe’s phone, saying “we ain’t gonna do Facebook Live, because that’s an officer safety issue.”
“Facebook Live … we’re not gonna have, okay, because that lets everybody y’all follow on Facebook that we’re out here,” said another officer. He told Sharpe that “in the future, if you’re on Facebook Live, your phone is gonna be taken from you … and if you don’t want to give up your phone, you’ll go to jail.”
“Is that a law?” Sharpe asks in the recording. “That’s not a law.”
Sharpe is right—there’s no law explicitly saying one can’t livestream interactions with police officers. But there’s also little legal precedent for what happens when one attempts to and cops curtail that attempt.
“No circuit court has yet ruled on whether passengers in traffic stops can be blocked from recording police or on whether live-streaming is different from merely recording,” notes The Washington Post. And the U.S. Court of Appeals for the 4th Circuit, which will hear this case, “has not ruled on the right to record at all.”
The 4th Circuit heard oral arguments for the case—Dijon Sharpe v. Winterville Police Department—in October.
“This case is important; it’s going to affect thousands of thousands,” Sharpe’s attorney, Andrew Tutt, told the court. “This case has important consequences for every police-citizen interaction in this circuit.”
Sharpe said he had wanted to livestream the traffic stop because he thought it was suspicious (the cops said the car’s driver ran a stop sign, something Sharpe said did not happen) and because of previous negative interactions he and family members have had with police. His cousin, Dontae Sharpe, was imprisoned for 24 years on murder charges despite a key witness recanting testimony after trial (Dontae was finally released and formally pardoned in 2021). “Since getting involved in efforts to free Dontae, Dijon says his encounters with police grew increasingly hostile, culminating in his being Tasered and beaten by police officers in 2017,” notes the Post. “With no video to support his version of events” that time, “he was forced in court to apologize to them.”
This time around, Sharpe wanted to make sure there was a real-time recording of events that police could not later alter or delete. After an officer told him this wasn’t OK, he sued.
A U.S. district court sided with the cops. “The Fourth Circuit has not held in a published opinion that an individual’s right under the First Amendment to record a traffic stop is clearly established, much less held that an individual has a right to record and real-time broadcast a traffic stop from within the stopped car,” wrote the judge in an August 2020 decision. Thereby the police could not have known their actions were wrong, and were entitled to qualified immunity.
“Seven federal appellate courts have affirmed that there is a First Amendment right to film the police,” notes the Post. “But all said there can be ‘reasonable’ restrictions on that right, and the U.S. Supreme Court has not clarified what counts.”
Sharpe then appealed to the U.S. Court of Appeals for the 4th Circuit. And a slew of civil liberties organizations have filed briefs on behalf of Sharpe’s position.
The appeals court “should hold that…the right to record is not limited to recording for future publication,” states the American Civil Liberties Union in one such brief. “Rather, it protects—and, if anything, derives from—the right to publish and disseminate video, including the right to do so instantaneously. The First Amendment protects the choice of when to publish just as it does the choice of what to publish, and whether to publish at all. In other words, the First Amendment protects the right to livestream, which
enables individuals to simultaneously record and broadcast.”
“Any reasonable officer should have known that preventing Mr. Sharpe from livestreaming his encounter with police would violate his clearly established First Amendment rights,” states a brief from the Institute for Justice. “After all, six federal circuit courts, the Department of Justice (‘DOJ’), and numerous local governments have long agreed that the First Amendment protects an individual’s right to record police in public.”
“Police have great power. Civilian recording of police officers serves the public’s vital interest in ensuring that police exercise this power lawfully,” states a brief from the National Police Accountability Project.
In holding that qualified immunity applied in this case, “the district court heavily emphasized that the many other cases on this subject did not involve the exact facts as Mr. Sharpe‘s case—specifically, that he was not just recording the encounter, but also ‘real–time broadcasting with the ability to interact via messaging applications in real–time with those watching a traffic stop from inside the stopped vehicle,'” notes the Cato Institute in its brief.
“But this approach to assessing whether rights are clearly established is exactly the sort of misapplication of qualified-immunity precedent that the Supreme Court recently warned against in Taylor v. Riojas,” the Cato brief continues. “Taylor reaffirmed that the fundamental question in qualified immunity cases is whether the defendant had ‘fair warning’ that their conduct was unlawful, not whether there is a prior case with functionally identical facts.”
“Unfortunately, the sort of misapplication of qualified immunity employed by the district court—construing ‘clearly established law’ to effectively require a case with identical facts—is no isolated error, but rather part of an all-too-common practice in lower courts,” the brief reads. “That persistent misunderstanding of qualified immunity not only gets the law wrong, but its application to police officers has exacerbated a growing crisis of accountability for law enforcement officers generally.”
FOLLOW-UP
Appeals court won’t pause ruling against student loan forgiveness plan. After a Texas judge ruled President Joe Biden’s student loan debt forgiveness plan unconstitutional, the Biden administration appealed to the 5th Circuit Court of Appeals, asking the court to pause the judge’s order as the administration’s appeal plays out. The court said no.
“A three-judge panel of the 5th Circuit in Wednesday’s brief order declined to put Pittman’s ruling on hold while the administration appealed his decision, but the court directed that the appeal be heard on an expedited basis,” reports Reuters. “The White House had no immediate comment but the administration has said that if the 5th Circuit declined to halt Pittman’s order it would ask the U.S. Supreme Court to intervene.”
FREE MINDS
Ohio arrests journalist covering murder trial. “An ongoing murder trial involving multiple defendants has resulted in the editor of small local paper being arrested for performing an act of journalism,” reports Techdirt.
The case revolves around recorded testimony from one of the defendants, Jake Wagner. In general, “courts permit recordings and broadcasting of criminal trials,” but “the relevant exception here is that witnesses can request their testimony not be recorded or broadcast and, if the court agrees, this permission is revoked during this testimony,” Techdirt‘s Tim Cushing explains. Wagner “made this request and had it granted. Nonetheless, someone attending the trial recorded it and passed it on to Derek Myers, who runs the Scioto Valley Guardian.”
Myers and the Guardian published some of the audio with this note:
The Guardian received a portion of Jake Wagner’s testimony on his first day on the witness stand. The Guardian wants to disclose that the audio was not recorded by a member of the media and was submitted to the Guardian’s newsroom by a courthouse source who is authorized to have their cell phone in the room.
Nonetheless, officers with the Pike County Sheriff’s Office arrested Myers and seized his laptop and his phone.
Myers was charged with having used the contents of an illegally obtained recording. But the First Amendment protects Myers and his paper from prosecution for merely publishing information or audio of public interest that it obtained legally, even if that audio was illegally obtained by someone.
As Cushing puts it: “This wasn’t wiretapping. This was journalism.”
While Myers should ultimately beat this, he still “had to post a $20,000 bond, must submit to alcohol/drug tests [???], and keep his schedule open to attend any court hearings until the charges are either dropped, or he’s cleared by the court,” notes Cushing. “Why must he do this? Because the government is clearly in the wrong, yet has the luxury of being wrong until proven otherwise.”
FREE MARKETS
More bad news for the crypto industry: One of the world’s largest crypto exchanges, Kraken, is laying off nearly a third of its work force, to the tune of around 1,100 people being let go. CEO and co-founder Jesse Powell called the move necessary “in order to adapt to current market conditions.”
“Over the past few years, hundreds of millions of new users entered the crypto space and millions of new clients put their trust in Kraken during that time. We had to grow fast, more than tripling our workforce in order to provide those clients with the quality and service they expect of us,” writes Powell in a blog post on the Kraken website. “Since the start of this year, macroeconomic and geopolitical factors have weighed on financial markets. This resulted in significantly lower trading volumes and fewer client sign-ups. We responded by slowing hiring efforts and avoiding large marketing commitments. Unfortunately, negative influences on the financial markets have continued and we have exhausted preferable options for bringing costs in line with demand.”
QUICK HITS
• Rep. Hakeem Jeffries (D–N.Y.) has been voted House Democratic leader, replacing Nancy Pelosi.
• Officials keep finding new ways to access private records without a warrant.
• Indiana’s attorney general continues to try and punish a doctor who provided an abortion to 10-year-old girl.
• “Today might not be a great time to buy a home. Tomorrow might not either,” writes Annie Lowrey.
• On the demise of Amazon’s Alexa.
• “A new expanded law on ‘foreign agents’ in Russia comes into force Thursday, signifying an intensifying crackdown on free speech and opposition under President Vladimir Putin that has accelerated as his fortunes in Ukraine have deteriorated,” reports CNN.
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