The First Amendment protects the right to livestream police stops

The case asks whether a city’s purported policy that prohibits video livestreaming of certain interactions with law enforcement violates the First Amendment…. Defendants have thus far failed to establish that the alleged livestreaming policy is sufficiently grounded in and tailored to a compelling government interest to survive First Amendment scrutiny.

[T]He complained that the policy limits… protected speech. Creating and disseminating information is protected speech under the First Amendment. “‘[A] The main purpose of the ‘First Amendment’ was to protect free discussion of government matters.’ [T]These policies expand the First Amendment to cover recordings—especially when the information implicates matters of public interest, such as police encounters…” Act[ ] of … video recording [is] Reasons entitled to First Amendment protection [it is] An important stage in the discourse process that culminates in the dissemination of information about a public debate.” … Recording police encounters produces information that contributes to the discussion of public affairs. Similarly, livestreaming disseminates that information, often creating its own record. This is how we hold Hold that livestreaming a police traffic stop is speech protected by the First Amendment.

But not all restrictions on protected speech violate the First Amendment. The burden now flips to the defendants. And the Town’s speech regulation survives First Amendment scrutiny only if the defendants demonstrate that: (1) the Town’s substantially important interests are at stake; (2) the policy furthers that interest; and (3) the policy is sufficiently tailored to further those interests…

Town officials want to justify the policy based on safety. According to the defendants, live streaming traffic stops puts officers in danger because bystanders can identify the officers and intervene in the encounter. They support the claim, with the help of amici, that violence against police officers is on the rise – including planned violence that uses new technology. From the defendants’ point of view, banning livestreaming prevents attacks or related disruptions that threaten officers’ safety.

This officer-safety interest may be sufficient to sustain the policy. But on this record we can’t tell yet. There is “undoubtedly a strong governmental interest” in the safety of officers. And the risks to officers are especially acute during traffic stops. But although the city has a strong interest in protecting its officers, the defendants have not done enough to show that the policy furthered or created that interest. That void is not filled here by common sense or Kessel. We therefore cannot conclude at this stage that the policy survives First Amendment scrutiny…

[T]The issues in this case arose in the context of a lawful Fourth Amendment seizure—a traffic stop—in which the detainee refused to comply with law enforcement officers’ orders to stop using a cell phone to communicate with others during the stop. . Ban on cell phone use Thus seizure was an aspectAnd so the legality of the restraint is governed by the Fourth Amendment and its jurisprudence recognizes that, when conducting a traffic stop, law enforcement officers may intrude in the interests of the liberty of those stopped, so long as the intrusion reasonable

The issue should therefore restate, I submit, whether, during a lawful traffic stop, law enforcement officers may lawfully prohibit a detainee from conducting electronic communications with others. This is a brief, but meaningful, adaptation of the issue addressed by the majority opinion, which is whether restrictions on detainees’ electronic communications are justified under a traditional, free-standing First Amendment analysis. Although the two analyzes may, but need not, lead to the same conclusion, I believe that we should apply the Fourth Amendment’s reasonableness test because the restrictions that plaintiff complains of were imposed as part of a lawful Fourth Amendment seizure…

The actual context is routine but important to demonstrate my point. On October 9, 2018, Officer William Ellis and Officer Helms conducted a lawful traffic stop of a vehicle driven by Juanquesta Staton, in which Dijon Sharp was a passenger. At the start of the stop, Sharp, his indictment alleges, “turned on the video recording function of his smartphone and began live streaming—broadcasting in real-time—to his Facebook account via Facebook Live, which reached a live audience and provoked live reactions. A viewer posted , “Stay safe bro!” Another asked, “Where are you at?” Other comments included “SWINE” and “They don’t like you Dijon.” Those watching the livestream could hear Staton saying that the police had been following them for some time. And they were racially profiled — officers who “saw two black men, and … [t]Hey worry drug dealer… it’s called harassment.”

During the stop, Officer Helms told Sharpe, “We’re not going to do Facebook Live, because it’s an officer safety issue.” At the same time, he tried to take Sharp’s phone, but Sharp moved it inside the car, out of Helms’ reach, and apparently told his Facebook Live audience, “Look at your son. Look at your son.” Officer Ellis then addressed Sharpe’s livestreaming, saying to both Staton and Sharpe, “In the future, guys, this Facebook Live stuff, … we’re not going to have, okay, because it allows everyone to follow on Facebook. [know] That we are here. There can only be one [officer] Next time… [and] [i]Lets everyone know where you are. We’re not going to do that.” Officer Ellis continued, “If you’re recording, that’s fine…. We also record,” but “in the future, if you’re on Facebook Live, your phone will be taken away from you, … [a]And if you don’t want to give up your phone, you’re going to jail.” When Staton explained that Sharp was using Facebook Live because they “don’t trust … the police,” Officer Ellis sympathized with the concern, but nevertheless reiterated, “[Y]You can record on your phone … but Facebook Live won’t.” …

In this case, Officer Helms and Officer Ellis … cited “officer safety” as the reason why they were asked during the stop to prohibit Sharp from livestreaming during the stop. Providing further explanation as to why it was reasonable for him to believe the officer’s safety was involved, Officer Helms asserted that livestreaming “adds[s] “Additional Hazards of Permitted Traffic Stops”[ing] Anyone watching”—an unknown but potentially large number of people—”knows where an officer is and what he’s doing in real time.”

In this way, he claims, livestreaming via a platform like Facebook Live by someone inside a stopped vehicle “has the unique ability to turn a routine traffic stop into a crowd-control operation, putting the officer in an unsafe position.” But what Officer Helms didn’t clearly know was whether his attempt to ban livestreaming during a traffic stop for officer safety violated Sharp’s First Amendment rights. Indeed, none have cited any cases that address such conduct—either in the Fourth Amendment context or, for that matter, in the First Amendment context. Absent such a statute, Officer Helms was entitled to qualified immunity, as the majority held, albeit following a different analysis.

The majority opinion applies a free-standing First Amendment analysis to the communications restriction, focusing on but not addressing one element of the seizure and its Fourth Amendment implications. Thus, with its narrow focus, the opinion states that “livestreaming a police traffic stop is speech protected by the First Amendment,” as the burden shifts to the police officer to show that his “sufficiently balanced interests are at stake,” barring the ban. “advances those interests,” and the prohibition is “sufficiently appropriate to further those interests.” … If the opinion were to recognize the Fourth Amendment’s context based on the aggregate activity involved, it would articulate a Fourth Amendment analysis that would determine—somewhat different from the narrow First Amendment analysis—whether the ban on livestreaming is “reasonable.” And this approach would be the traditional one to take. When, during a valid seizure, an officer demands identification, or orders a passenger to exit the vehicle and stay away from the driver, or orders a passenger to temporarily surrender a firearm during a stop—arguably the First and Second Amendments, respectively. —Courts traditionally use a Fourth Amendment analysis to determine whether restrictions on otherwise protected conduct are reasonable.

While the majority opinion’s free-standing First Amendment analysis may, but need not, ultimately lead to the same result, the Fourth Amendment analysis is based on a simple notion of reasonableness. And so in this case, the question will ultimately be whether it was reasonable to ban live streaming by people detained during traffic stops, regardless of whether the ban was imposed by individual officers or by city policy….