When police pulled over a car in Winterville, N.C., after a Walmart run in 2018, Dijon Sharpe was wary — and ready. From the passenger seat, he opened Facebook Live and started to speak directly to anyone watching. As one officer ran the driver’s license, another grabbed at Sharpe’s phone and issued a warning. “Facebook Live, we’re not gonna have, because that lets everybody on Facebook know we’re out here,” the officer said. He then said he would make an exception, but that “in the future, if you want to Facebook Live, your phone’s going to be taken from you, and if you don’t want to give up your phone, you’ll go to jail.” Sharpe expressed skepticism as he continued to record. “Is that a law?” he asked. “That’s not a law.” Whether it’s legal is now before the U.S. Court of Appeals for the Fourth Circuit, the Washington Post reports.
“This case is important; it’s going to affect thousands of thousands” of people, Sharpe’s attorney, Andrew Tutt, said at oral argument. “This case has important consequences for every police-citizen interaction in this circuit.” No federal appeals court has ruled on whether passengers in traffic stops can be blocked from recording police or on whether live-streaming is different from merely recording. The Fourth Circuit has not ruled on the right to record at all. “It is not a clean case in terms of precedent, and that’s what makes it complex,” said Clay Calvert, a law and communications professor at the University of Florida. “New technologies kind of push the boundaries of things — this is how law evolves.” Sharpe, 27, said he preferred live-streaming because it was clear to viewers that the footage wasn’t edited or out-of-date: “This isn’t prerecorded, this didn’t happen last year … this is happening right now, I’m not just making it up.” Live-streaming on Facebook also creates an immediate record that prevents police from seizing a phone and deleting footage before it’s released, he noted: “It’s just more secure for the community or the individual."