By Shreya Tewari, Brennan Fellow, ACLU Speech, Privacy, and Technology Project

In 2018, Dijon Sharpe, a Black civil rights activist in North Carolina, was the passenger in a car that got pulled over by two police officers. Having previously experienced a violent beating by police officers during a traffic stop, he began livestreaming the interaction on social media. The officers on the scene told him he wasn’t allowed to livestream, and tried to physically obstruct the stream by seizing his phone from his hand. Mr. Sharpe filed a lawsuit arguing that the officers had violated his First Amendment right to record and livestream the police.

The right to record police conduct — without which the public’s right to criticize the government and expose government misconduct or systemic abuse would be considerably weakened — has been widely upheld by the courts. But the district court in this case drew a line between recording and livestreaming, concluding that, while the First Amendment may protect the right to record, it doesn’t protect the right to livestream. And it also held that, even if the First Amendment protects bystanders, it doesn’t protect passengers during traffic stops.

As we argue in a friend-of-the-court brief filed last week, the district court was wrong on both counts.

People have been recording persistent, horrific law enforcement violence against Black people and other people of color for decades. Notably, a bystander recorded LA officers beating Rodney King on a Sony video camera almost 30 years ago. Last year, bystander video of Minneapolis police killing George Floyd played a key role in Black Lives Matter protests that spanned more parts of the country and involved more people than any public movement in recent U.S. history. And years of Black-led organizing in the wake of such bystander videos has generated widespread calls — which the ACLU supports — to shift many roles and resources away from policing and into reinvesting in Black and Brown communities.

Livestreaming has also been part of our public discourse for decades. It’s as old as TV and radio news. Indeed, news reporters are perhaps the “bystanders” we are all most familiar with, and they regularly report live — including from the scene of breaking news. These broadcasts are protected by the First Amendment: Speech is protected regardless of medium, and the choice of when to publish is part of freedom of speech.

The significance and necessity of protecting livestreaming has only become clearer since internet-connected phone cameras have come into widespread use, and the rise in social media has helped bring cases of police abuses to public light.

In 2016, Diamond Reynolds, Philando Castile’s girlfriend, famously livestreamed the moments immediately following Minnesota police fatally shooting him. In doing so, she shared and preserved the horrific reality of a deadly police interaction. And, had she not been livestreaming, the footage might never have made it to the public eye, because police handcuffed Diamond during her livestream, causing her phone to fall to the ground. Because she was livestreaming, however, the conduct and words of the police were still shared and preserved after the phone fell.

This is not uncommon. Although they can go to jail for it, officers sometimes seize or destroy phones, memory cards, and cameras, meaning that livestreaming may be the only option for sharing footage. This includes during traffic stops, which are the most common contexts in which people interact with — and are abused by — law enforcement in public.

Protecting the rights not only of bystanders, but also of those involved in the police interaction is critical. While the most comprehensive and easily shared recordings often come from bystanders — and those recordings can spark or support nationwide calls for justice — people who are part of the police interaction itself are even more vulnerable to experiencing violence and not being able to document it. And they have a unique perspective to share.

Recording and livestreaming interactions is a critical tool for communities that are over-policed and disproportionately targeted by law enforcement because it often serves as the only “proof” that police misconduct has occurred. Police body cameras, which were originally intended to increase transparency and police accountability, are not an adequate substitute for civilian-captured videos. Too many jurisdictions have not enacted good, enforceable body camera rules, giving police officers considerable discretion to frequently switch off those cameras, block them intentionally during unlawful action, or make it difficult to retrieve the footage later on. Even if the footage works as intended, captures all conduct, and is preserved and turned over properly, footage is often illegitimately withheld from the public. And even if preserved and released to the public, police body cameras inherently capture the point of view of the police, not of those who are being policed.

Recordings and livestreams have contributed to a growing societal understanding of how frequently this type of violence occurs against the Black community and other over-policed communities of color. Such footage is by no means a perfect safeguard — for every violent police interaction that goes viral, many others occur without being documented. But that makes protecting the First Amendment right to record and livestream those that are captured all the more important, as it sheds light on at least a fraction of existing abuses. It is critical that the courts maintain robust First Amendment protections for people to record, share, and stream police interactions. Our ability to speak about police abuses depends on it.

By Leila Rafei, ACLU Content Strategist & Eva Lopez, ACLU Communications Strategist

Learning about dynamics of race and gender is an integral part of any student’s education and necessary to understand U.S. history. But instead of fostering an open and honest dialogue, a handful of states — including Texas, Tennessee, Idaho, and Oklahoma, among others — are passing censorship bills that ban conversations about race and gender in public schools. These bills chill students’ and educators’ First Amendment right to learn and talk about the issues that impact their everyday lives. They further marginalize communities, create an unsafe learning environment, and shortchange students of their right to receive an inclusive education, free from censorship or discrimination.

Anthony Crawford, Regan Killackey, and Lilly Amechi are part of a group of students and educators who sued Oklahoma for its censorship bill, HB 1775, which passed in May. Their stories show how the bill has already had a detrimental impact in classrooms and campuses and why learning about race and gender benefits all students, no matter their background.

Anthony Crawford

It’s not the first time America has tried to eradicate certain truths out of history books. When I was a junior in high school, I was kicked out of AP History class when I asked the teacher when we were going to learn about Black history. It was Black History Month, and we weren’t learning anything about any Black people. My question made the teacher uncomfortable. I remember his face turning red. He said, ‘You’re not going to disrupt my class, so please step out.’ So I tossed the books on the floor and left the class.

Later, when I became a teacher, the first thing I noticed was that students still didn’t have a clue about what was going on in society. They didn’t understand what happened during the Jim Crow era. They didn’t understand Reconstruction. They didn’t understand slavery one bit. So I made it my goal to catch them up and equip them with the knowledge they need to navigate society when they graduate. That means creating a curriculum that incorporates readings on race and gender and gives them an accurate picture of history and the systems that created the realities we see today.

Most of the time, my students are the ones who want to talk about race and gender, because these are the issues they deal with in their everyday lives. It helps them make sense of what they witness when they step outside school, like police brutality, mass incarceration, and the school-to-prison pipeline. It also helps them understand themselves, their communities, and each other.

Regan Killackey

As an English teacher, my classroom discussions often center themes of race, sex, gender, and equity. These discussions are critical to my students’ understanding of literature, society, and each other.

Most importantly, as a teacher, I must ensure all my students can see themselves reflected in course material — not just the white students. When we unpack To Kill A Mockingbird and Their Eyes Were Watching God, my Black students get to reflect on pieces of their stories by connecting with the author and content within the narrative, which is critical for their development. Their peers — often for the first time learn through literature what it is like to be Black in America and the discrimination that my Black students and students of color experience every day. To share that experience with others is empowering for my students. Students of color and from other marginalized communities should have their voices heard in a predominantly white classroom. A diverse authorship and the themes that necessarily accompany it allow them the space to do that.

Oklahoma’s HB 1775 causes school districts to distrust teachers’ ability to lead these discussions, and as a result, schools are attempting to silence teachers for fear we may violate the bill. School officials specifically instructed us to avoid books by authors of color and women authors, leaving two books written by white men — The Great Gatsby by F. Scott Fitzgerald and The Crucible by Arthur Miller — as our only remaining anchor texts. English teachers in my district can possibly face formal admonishment or lose their Oklahoma teaching licenses if they don’t comply with this directive and are found to be in violation of HB 1775.

As a result of the censorship bill, my school is endorsing a whitewashed version of English literature that is detrimental to all my students and prohibits me from providing an inclusive education to the next generation of responsible citizens. In essence, it prohibits me from doing my job.

Lilly Amechi

After two racist incidents in February 2020, BERT led a sit-in and created a list of demands for OU. One of those demands was to create a new diversity, equity, and inclusion (DEI) course that would enable students to be more aware of how bias and discrimination impacts minorities. When HB 1775 was passed, OU no longer made the course a requirement. I think the impact will be detrimental to all students. And, to students of color, it sends a message that there is no willingness for people to understand our experiences.

The reality is that race pervades the classroom even when it’s not the main subject. In a political science class, we discussed President Andrew Jackson’s role in the Trail of Tears, a mass atrocity committed against Indigenous people, without acknowledging the horrors they faced and continue to experience today.

I’ve been similarly uncomfortable during conversations about slavery. In one class, a student argued that the Three Fifths Compromise is evidence that the Constitution is anti-slavery because it could have not counted slaves as people at all. These kinds of ignorant and racist comments create an uncomfortable learning environment for students of color. The censorship bill will make it worse because it targets anti-racist messages and viewpoints.

The university also removed a sexual harassment training as a requirement supposedly in order to comply with the censorship bill. The training teaches students about consent, respect, and human decency. It is rape and assault prevention. Sexual assault has also been a huge worry for women on campus, and particularly Black women, women of color, and LGBTQ+ women, and we are already seeing the negative effects of no longer requiring this training.

The sexual harassment training and DEI course served as early interventions for students who might consciously or unconsciously engage in harmful behavior. Now we feel we are much more on our own trying to stand firm and push back.

In October, Anthony, Regan, and Lilly were among a group of students, teachers, and organizations that sued the state of Oklahoma with representation from the ACLU, the ACLU of Oklahoma, the Lawyers’ Committee for Civil Rights Under Law, and pro bono counsel Schulte, Roth & Zabel. The other plaintiffs include the Black Emergency Response Team (BERT); the University of Oklahoma Chapter of the American Association of University Professors (OU-AAUP); the Oklahoma State Conference of the National Association for the Advancement of Colored People (NAACP-OK); and the American Indian Movement (AIM) Indian Territory.

Learn more about the case