But Dijon Sharp, 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 on Facebook Live, still faces obstacles. is facing in his case.
The court held that the individual officer who told Sharp to stop recording was protected from suit by qualified immunity, because at the time of the incident “it was not clearly established that the First Amendment permitted an officer to A passenger was prevented from stopping live streaming. Their traffic stops.”
Therefore, Sharp must prove that the officer was following town policy, not his own interpretation of the law, in order to proceed with the lawsuit. And the policy can survive as a restriction on speech, the court said, if it is interpreted in terms of compelling government interests.
The precedents limiting liability by the officer and the town have been “criticized for being proportionate, historical, and policy-based,” the court wrote. “But they are bound too.”
The town’s earlier argument that “violence against police officers is on the rise — including planned violence that uses new technologies” was deemed insufficiently justified by the court.
The case was the first time a circuit court ruled on whether police recordings of passengers during traffic stops can be intercepted or whether live streaming is different from mere recording.
The decision was written by Judge Julius N. Richardson, appointed by President Donald Trump, and joined by Michael S. Nachmanoff, appointed to the D.C. Circuit by President Biden, who sat on the panel.
According to court records, Sharp, 28, was told he could record but not live stream, “because it’s an officer safety issue.” In an interview last year, he explained that he preferred live streaming because it made it clear that the video was new and unedited and prevented the recording from being deleted before release.
“Live streaming police communication is very much needed and very much within the law,” he said at the time.
Only one of the three judges on the panel heard the case. ruled that the ban on Sharp’s cell phone use should not be viewed as a free speech issue under the First Amendment, but rather as a seizure under the Fourth Amendment.
“When conducting a traffic stop, law enforcement officers may interfere with the liberty interests of those stopped, so long as the interference is reasonable,” Judge Paul V. Niemeyer, a Reagan appointee, argued. gave
Richardson and Nachmanoff reject this argument.
“Government action may pass scrutiny under the Fourth Amendment but still offend the First,” he wrote. “The Fourth and First Amendments do not authorize government actions. They limit them. So finding that some police intrusions on liberty comply with the Fourth Amendment does not bless those actions as legitimate restrictions on speech.
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