Depending upon your point of view “livestreaming” police contacts benefits citizen civil rights, impedes police officers’ ability to do their job, and/or instigates riots. All these things are true.
Many police officers don’t like it when citizens livestream their contact with the public; they believe it interferes with their ability to properly perform their job. On the other hand, livestreams may keep the police “in check.” Some officers abuse their power and the notion that there might be a citizen livestreaming their actions may lead such officers to follow the law.
But is citizen livestreaming police contact legal? While the courts have upheld the First Amendment right to videotape an officer functioning in public, is a livestream video – i.e., videotaping an officer performing his duties in real time and broadcasting that contact in real time to the public—subject to the same First Amendment protections? The question of livestreaming an officer and the First Amendment right to do so is an evolving area of law. A recent case heard in the federal Fourth Circuit, Sharpe v. Winterville Police Department (4th Cir. Feb. 7, 2023) 59 F.4th 674 considered this question.
While Sharpe v. Winterville Police Department is not binding in California, it is the first of what will undoubtedly be many more cases, some of which we can expect in California, challenging the legality of livestreaming police-citizen interactions. The Fourth District opinion gives some guidance as to how this will sort out across the country.
Here’s the scenario in the Fourth Circuit case: An officer stopped a motorist for a traffic violation. A passenger in the vehicle started livestreaming the traffic stop but the officer prohibited the passenger from continuing with the livestream (although the officer did tell the passenger he could videotape it). The officer argued that livestreaming the stop created an unnecessary safety hazard because it could prompt third parties to turn up at the scene of the traffic stop.
The passenger sued for a violation of his First Amendment right. The Fourth Circuit sided with the passenger. That court held, “Recording police encounters creates information that contributes to discussion about governmental affairs. So too does livestreaming disseminate that information, often creating its own record. We thus hold that livestreaming a police traffic stop is speech protected by the First Amendment.”
The court recognized that officer safety may be a consideration, but the circumstances of this case did not rise to such a level. Officer safety may arise if the person livestreaming is physically preventing the officer from performing his or her duty, such as in a case where the person is putting his phone right in the middle of the action. Another situation where officer safety is implicated might be a livestream where the livestreamer is encouraging viewers to come to the location and interfere with the police action. But such were not the circumstances here and the mere act of livestreaming an officer/citizen interaction in a way that does not clearly endanger the officer’s safety is, according to the Fourth Circuit court, protected under the First Amendment.
Orange County criminal defense attorney William Weinberg is committing to protecting your rights. He is available for a complimentary consultation to discuss your criminal matter and advise you of your options. He may be contacted by calling 949-474-8008 or by emailing him at email@example.com.