News Media Urges Denial of Ind. AG’s Motion to Dismiss First Amendment Challenge

The seven plaintiffs seeking to challenge Indiana’s HB-1186 statute for unconstitutionally impeding the news media by making it a misdemeanor for journalists to come within 25 feet of police officers on official duty oppose Indiana Attorney General Todd Rokita (R) and his two co-defendants' Dec. 1 motion to dismiss their complaint (see 2312040003), according to their memorandum Friday (docket 1:23-cv-01805) in U.S. District Court for Southern Indiana in Indianapolis.

Since the day HB-1186 took effect, July 1, it regulated the journalism that the plaintiffs, including Nexstar, Scripps, Tegna and the Indianapolis Star, “engage in as a matter of course,” said the memorandum. Journalists come within 25 feet of police officers on a near-daily basis, said the plaintiffs, which also include the Reporters Committee for Freedom of the Press, the Indiana Broadcasters Association and the Society of Professional Journalists' Indiana chapter.

HB-1186 “vests” officers with "unbridled discretion" to prohibit journalists’ “constitutionally protected newsgathering,” said the plaintiffs’ opposition memorandum. They seek an injunction enjoining Rokita from enforcing the statute. In the face of HB-1186's “patently unconstitutional result,” Rokita and his co-defendants “offer a principal line of defense that can only be described as unserious” in seeking to dismiss the complaint, it said.

The defendants contend the plaintiffs are estopped from challenging HB-1186 by a “hypothetical decision” that the defendants hope might be issued in their favor in a proceeding to which the plaintiffs “have no connection,” said the memorandum. Their reference was to litigation filed Aug. 8 in the Northern District of Indiana, Nicodemus v. City of South Bend (docket 3:23-cv-00744), in which YouTuber Donald Nicodemus raises similar constitutional challenges to HB-1186. The argument “badly misunderstands the law governing nonmutual issue preclusion and the first-to-file principle,” and it has “no merit whatsoever,” said the memorandum.

The defendants’ “fallback defense” of HB-1186, that the plaintiffs lack standing to challenge a statute that regulates their daily work and has already been applied to their journalists, "fares no better," said the memorandum. The “gist” of the defendants’ standing argument is that HB-1186 hasn’t actually been enforced against the plaintiffs and that the plaintiffs face no threat of enforcement because the statute will be used only when necessary to prevent interference with law enforcement, it said.

The first claim is “simply wrong,” said the memorandum. Law enforcement already has been telling the plaintiffs' journalists to move, as often as once a day, since HB-1186 took effect, said the memorandum. The second claim is contrary to the “plain language” of HB-1186, which doesn’t limit the statute’s use to circumstances where enforcement is necessary to prevent interference, it said.

Even if the plaintiffs’ journalists hadn’t been told to move, the defendants’ motion to dismiss would fail because “it fundamentally misunderstands the standards governing a pre-enforcement challenge to a statute that regulates the freedoms of speech and the press,” said the memorandum. The allegations of the complaint, standing alone, would “suffice to demonstrate” that the plaintiffs have standing because HB-1186's plain language “flatly prohibits” newsgathering that the plaintiffs’ journalists “engage in every day,” it said.

In each respect, the defendants’ efforts to “avoid the merits” of the plaintiffs’ challenge to HB-1186 fail, said the memorandum. The court should deny the motion to dismiss, it said.