Are people allowed to "livestream" their contacts with Law Enforcement?

By Robert Phillips, Deputy District Attorney (Ret).

A person “livestreaming” a citizen-police contact raises the same First Amendment issues as does simply videotaping that same contact.

The majority of the federal Circuit Courts of Appeal have held that a private citizen has a First Amendment right to videotape public officials while performing their duties in public, including, but not limited to, police officers and other law enforcement officers.  (E.g., see Gericke v. Begin (1st Cir. 2014) 753 F.3rd 1.)  This includes the Ninth Circuit (See Askins v. United States Department of Homeland Security (9th Cir. 2018) 899 F.3rd 1035, 1043-1044.), which oversees the law on federal issues in California.  But when that videotaping involves “livestreaming” (i.e., sending out real-time video to anyone who cares to watch), the issues are a bit different.  So held the federal Fourth Circuit Court of Appeal in the recent case of Sharpe v. Winterville Police Department (4th Cir. Feb. 7, 2023) 59 F.4th 674.

In Sharpe, officers attempted to stop a Dijon Sharpe—a passenger in a vehicle stopped for a traffic violation—from livestreaming the contact.  Sharpe later sued the officers individually, as well as the town of Winterville, North Carolina, for attempting to violate his First Amendment right to videotape—and publish in real-time—the contact.  The officers’ argument in response was that contrary to merely videotaping a police-citizen contact, livestreaming generates an unnecessary safety issue by potentially encouraging third parties to respond to the scene of an on-going traffic stop. 

The Court didn’t buy it, finding the officers to be civilly liable.  However, in this case, the officers were held to have qualified immunity in that this new rule, as it ....

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