Ind. AG Urges Dismissal of Suit Challenging Constitutionality of State’s ‘Buffer Law’
The U.S. District Court for Southern Indiana in Indianapolis should dismiss the suit challenging the constitutionality of Indiana’s “buffer law” for lack of jurisdiction because the media organizations that brought the action Oct. 6 have alleged no facts sufficient to establish standing or ripeness, said Indiana Attorney General Todd Rokita (R) and his two co-defendants in their motion Friday (docket 1:23-cv-01805).
Indiana’s HB-1186 statute “unconstitutionally abridges” the news media’s ability to fulfill its functions by making it a misdemeanor for journalists to come within 25 feet of police officers who are lawfully engaged in the execution of their official duties, alleged Nexstar, Scripps, Tegna and the Indianapolis Star in their First Amendment complaint (see 2310100026. The Reporters Committee for Freedom of the Press, the Indiana Broadcasters Association and Society of Professional Journalists' Indiana chapter also joined the complaint, which seeks an injunction enjoining Rokita from enforcing the statute, which took effect July 1.
But HB-1186 is a law “that has never been enforced” against any of the plaintiffs “purporting to represent the interests of the press,” said the defendants’ brief in support of their motion to dismiss. Nor, as the plaintiffs’ own examples show, is HB-1186 “likely to be used to target any press member,” it said. It has never been invoked against any press member, “except with extraordinary deference to extremely belligerent individuals who, while disrupting lawful police activity, happen to be filming,” it said.
The plaintiffs bring their action despite litigation filed Aug. 8 in the Northern District of Indiana, Nicodemus v. City of South Bend (docket 3:23-cv-00744), said the defendants’ brief. In that case, YouTuber Donald Nicodemus, representing press interests, “has raised exactly the same issues in litigation” that preserves the plaintiffs’ interests in their case, it said. Nicodemus regularly posts videos on his YouTube channel, Freedom 2 Film, to monitor police activity.
A ruling in favor of plaintiff Nicodemus “would render the challenged law unconstitutional on the same grounds, and in favor of the same interests,” that the media organizations assert here, “fully preserving them,” said the defendants’ brief. This case accordingly should also be dismissed, or alternatively stayed, on grounds of the first-filed rule and collateral estoppel, it said.
The media organization plaintiffs seek declaratory and injunctive relief “to redress the purported injury caused to them” by HB-1186, said the defendants’ brief. But the problem "is simple,” it said. The plaintiffs “have never suffered such an injury, nor is there any reason to believe they will,” it said.
The plaintiffs don’t allege that HB-1186 “has actually been or will likely be enforced against them,” said the defendants’ brief. They also don’t allege that they have “self-censored” as a result of HB-1186, and they don’t allege “that they intend to self-censor,” it said. In a “twist of irony,” the only instances of enforcement they do allege show that HB-1186 isn’t being enforced “in the manner they claim to fear, but is only being enforced evenhandedly and with great deference to those recording law enforcement, in situations in which it is plainly needed,” it said.