From Sharpe v. Winterville Police Dep't, decided today by Judge Julius Richardson, joined by District Judge Michael Nachmanoff:
This case asks whether a town's alleged policy that bans video livestreaming 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, strong governmental interests to survive First Amendment scrutiny….
[T]he alleged policy restricts … protected speech. Creating and disseminating information is protected speech under the First Amendment. "'[A] major purpose of' the First Amendment 'was to protect the free discussion of governmental affairs.'" … [T]hese principles extend the First Amendment to cover recording—particularly when the information involves matters of public interest like police encounters…. "The act[ ] of … recording videos [is] entitled to First Amendment protection because [it is] an important stage of the speech process that ends with the dissemination of information about a public controversy." … 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.
But not all regulation of protected speech violates the First Amendment. The burden now flips to Defendants. And the Town's speech regulation only survives First Amendment scrutiny if Defendants demonstrate that: (1) the Town has weighty enough interests at stake; (2) the policy furthers those interest; and (3) the policy is sufficiently tailored to furthering those interests….
The Town purports to justify the policy based on officer safety. According to Defendants, livestreaming a traffic stop endangers officers because viewers can locate the officers and intervene in the encounter. They support this claim by arguing, with help from amici, that violence against police officers has been increasing—including planned violence that uses new technologies. On Defendants' view, banning livestreaming prevents attacks or related disruptions that threaten officer safety.
This officer-safety interest might be enough to sustain the policy. But on this record we cannot yet tell. There is "undoubtedly a strong government interest" in officer safety. And risks to officers are particularly acute during traffic stops. But even though the Town has a strong interest in protecting its officers, Defendants have not done enough to show that this policy furthers or is tailored to that interest. Nor is that gap filled here by common sense or caselaw. So we cannot conclude, at this stage, that the policy survives First Amendment scrutiny….
Judge Paul Niemeyer disagreed in part:
