The First Amendment protects the right to live police stops

This case questions whether an alleged city policy prohibiting live video streaming of certain police interactions violates the First Amendment…. Defendants have thus far failed to demonstrate that the alleged livestreaming policy is sufficiently grounded in and tailored to strong government interests to survive First Amendment scrutiny….

[T]argued that the policy restricts… protected speech. The creation and dissemination of information is protected speech under the First Amendment. “‘[A] the main purpose of the ‘first amendment’ was to protect free discussion of government affairs.'”… [T]these principles extend the First Amendment to recording—especially when the information involves matters of public concern such as police encounters… “The act[ ] from … video recording [is] is entitled to First Amendment protection because [it is] an important phase of the speech process that ends up spreading information about a public controversy.” … Recording police encounters creates information that contributes to the debate about government affairs. Likewise, livestreaming spreads that information, often creating its own record. Therefore, I believe that live streaming of a police stop is speech protected by the First amendment.

But not all protected speech regulations violate the First Amendment. The onus has now shifted to the defendants. And a city’s speech regulation survives First Amendment scrutiny only if the defendants show that: (1) the city has sufficiently weighty interests at stake; (2) politics promotes these interests; and (3) the policy is sufficiently tailored to promote those interests….

The city allegedly justifies the policy based on officer safety. According to the defendants, live streaming of a traffic stop puts the officers at risk because viewers can locate the officers and intervene in the confrontation. They support this claim by arguing, with the help of friends, that violence against police officers is on the rise—including planned violence that uses new technologies. In the defendant’s view, the ban on live broadcasts prevents attacks or related disturbances that threaten officer safety.

That interest in officer safety might be enough to sustain the policy. But on this record we can’t say yet. There is an “undoubtedly strong government interest” in officer safety. And the risks for officers are particularly acute during traffic stops. But even though the City has a strong interest in protecting its officers, the defendants have not done enough to show that this policy furthers those interests or is tailored to those interests. Nor is that gap filled here by common sense or case law. Therefore, we 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 seizure under the Fourth Amendment – a traffic stop – during which the person arrested refused to obey a law enforcement officer’s order to stop using a cell phone to communicate with others during the stop. Restriction of mobile phone use was therefore an aspect of the seizureand therefore the legality of the restraint is governed by the Fourth Amendment and its case law recognizing that, in conducting a traffic stop, law enforcement officers may intrude on the liberty interests of those stopped, so long as the obstruction reasonable.

Therefore, the question should be asked again, I believe, whether, during a lawful traffic stop, law enforcement officers may lawfully prohibit a detained person from conducting electronic communications with others. This is a nuanced but significant adjustment to the issue addressed by the majority opinion, which is whether restrictions on detainees’ electronic communications are justified under traditional, stand-alone First Amendment analysis. Although the two analyzes may or may not lead to the same conclusion, I believe we should apply the Fourth Amendment’s reasonableness test because the restraints plaintiff complains of were imposed as part of a lawful seizure under the Fourth Amendment….

The factual context is routine, but it is 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 Juankesta Staton and occupied by Dijon Sharpe. At the start of the stop, Sharpe, according to his complaint, “turned on the video recording function on his smartphone and began livestreaming—broadcasting in real time—via Facebook Live to his Facebook account,” which reached a live audience and elicited live reactions. . One viewer posted: “Be safe bro!” and another asked, “Where are you now?” Other comments included “PIGS” and “They don’t like you Dijon.” Those watching the live stream could hear Staton say that they had been followed by police for some time and were being racially profiled — that the officers “saw two black men and . . . [t]hey thinking drug dealer…. That’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 grab Sharpe’s phone, but Sharpe moved it further into the vehicle, out of Helms’ reach, and said, apparently to his Facebook Live audience, “Look at your boy. Look at your boy.” Officer Ellis then addressed Sharpe’s livestreaming, telling both Staton and Sharpe, “In the future, folks, this Facebook Live stuff, … we’re not going to have, okay, because it allows everybody to follow on Facebook [know] that we are out here. Maybe there is only one [officer] next time … [and] [i]it doesn’t let everyone know where you are. We’re not going to allow that.” Officer Ellis continued, “If you’ve been recording, that’s perfectly fine… We’re recording, too,” but “in the future, if you’re on Facebook Live, your phone will be confiscated, … [a]and if you don’t want to give up your phone, you’re going to go to jail.” When Staton explained that Sharpe was using Facebook Live because they didn’t “trust … the cops,” Officer Ellis sympathized with the concern, but nevertheless reiterated, “[Y]you can record on your phone … but Facebook Live won’t happen.” …

In this case, Officer Helms and Officer Ellis … cited “officer safety” as the reason they asked, during the stop, to ban Sharpe from livestreaming while the stop was in progress. Giving further explanation as to why it was reasonable for him to believe that officer safety was involved, Officer Helms claims that the live stream “adds[s] additional dangers” until stopping the traffic “permit[ing] anyone watching”—an unknown but potentially large number of people—”to know where the officer is and what he or she is doing in real time.”

In that way, he argues, 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, leaving the officer in a precarious position.” But what wasn’t clear to Officer Helms was whether his efforts to ban live streaming during a traffic stop for officer safety violated Sharpe’s First Amendment rights. Indeed, no one has cited any case dealing with such conduct—either in the context of the Fourth Amendment or, for that matter, in the context of the First Amendment. Absent such a statute, Officer Helms was entitled to qualified immunity, as the majority holds, albeit on a different analysis.

The majority opinion applies a stand-alone First Amendment analysis to the restriction of communication, focusing only on the seizure component without addressing the seizure itself and its Fourth Amendment implications. Thus, with its narrower focus, the opinion states that “broadcasting a police traffic stop is speech protected by the First Amendment,” so the burden shifts to the officer to show that he had “sufficiently weighty interests at stake,” the injunction “promotes those interests,” and the ban is “sufficiently adapted to the promotion of those interests”. … If the opinion recognized the Fourth Amendment context based on the overall activity involved, it would articulate a Fourth Amendment analysis that would determine—somewhat different from the narrower First Amendment analysis—whether the restriction on live streaming was “reasonable.” And this approach would be traditional. When, in the course of a lawful seizure, an officer demands identification, or orders a passenger to exit the vehicle and remain at a distance from the driver, or orders the passenger to temporarily surrender a firearm during a stop—presumably implied by the First and Second Amendments, respectively—courts traditionally apply Fourth Amendment analysis. amendment to determine whether restrictions on otherwise protected conduct are reasonable.

While the majority opinion’s stand-alone First Amendment analysis may or may not ultimately lead to the same result, the Fourth Amendment analysis is based on a straightforward concept of reasonableness. Therefore, the question in this case would ultimately be whether it is reasonable to prohibit live streaming by persons caught during a traffic stop, regardless of whether the restriction is imposed by individual officers or by city policy….

All three judges agreed that the police officers were protected by qualified immunity, since the applicable law was not clearly established. Congratulations to Andrew Tutt (Arnold & Porter Kaye Scholer LLP), representing the plaintiff.

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