Cars have always been a minefield when it comes to privacy rights verses public safety, and now, two important questions are finally in front of a U.S. circuit court: Is live streaming protected in the same way as recording, and does the passenger in a stopped car have a First Amendment right to record or broadcast a stop?
These questions are now before the U.S. Court of Appeals for the Fourth Circuit based on a lawsuit brought by Dijon Sharpe. Sharpe was riding in a car pulled over by Winterville, N.C., police in 2018. He began live streaming the traffic stop to Facebook Live when a Winterville Police Department officer told him to stop. The officer tried to grab Sharpe’s phone and threatening him with arrest if Sharpe didn’t surrender the phone to the officer.
Sharpe sued the police department, arguing that live streaming the interaction was important in order to show that the footage was not edited and to protect the footage from being deleted should the police seize his phone. The Winterville Police Department, however, argued that live streaming puts officers at risk by advertising to people associated with stopped drivers exactly where they are. Such live streams could lead to a crowd gathering or revenge from associates angry over police stops in general.
While the right to free speech is in the mix — and you definitely have the right to at least record a traffic stop — the Fourth Amendment argument is important too. Just where do passengers’ protection against unreasonable searches and seizures end and police officers’ reasonable need to control a traffic stop begin? From the Washington Post:
Lenese Herbert, an expert in policing and the constitution at Howard University School of Law, said the Supreme Court has given law enforcement great leeway when the First and Fourth amendments intersect.
“You would think combined they would create a super amendment. They have not,” she said. Instead, police can then argue that their actions were not about speech but controlling a possible crime scene and potential criminals: “Officers basically get to subvert the First Amendment by couching it in Fourth Amendment terms, and allow the court to undermine First Amendment rights.”[…]
“There are no special protections for passengers” in a car, Herbert said. “The Supreme Court has made it very clear if you’re in a vehicle, you’ve got a Fourth Amendment right, but it’s a lesser right.”
Previous courts have upheld citizen’s right to record the police, but this is the first time the question of a passenger’s rights have been called into question. The decision could have reverberations for everyone’s rights while behind the wheel.