Ind. ‘Buffer Law’ Puts ‘Impermissible Burden’ on Speech, Press, Say 6 News Media Groups

YouTuber Donald Nicodemus’ appeal to reverse the district court’s denial of his motion for an injunction to block Indiana’s “buffer law,” HB-1186, implicates the law’s “First Amendment abridgments,” said the Radio Television Digital News Association, the National Press Photographers Association and four other news media organizations in an amicus brief (docket 24-1009) in the 7th U.S. Circuit Court of Appeals in support of Nicodemus.

HB-1186 makes it a misdemeanor to approach within 25 feet of police officers on active duty. Nicodemus periodically livestreams police encounters on his YouTube channel. He contends that South Bend police on July 20 moved him back farther from a shooting investigation in town, referencing HB-1186 as they did so.

The law, as expected, has been used “to prevent the legitimate newsgathering and reporting activities of journalists,” said the amicus brief, dated March 18, and released Thursday in the 7th Circuit’s public docket. The Indiana legislature “didn’t hide its intent of creating this law with the goal of giving law enforcement the arbitrary discretion to restrict photographers and other police observers from documenting police activity in public,” it said.

Even the term “encroachment” in the title of HB-1186 “turns First Amendment principles on its head” by “imbuing officers with rights they do not possess while stripping citizens and journalists of their First Amendment protections in public places,” said the brief. With no exceptions for newsgathering or legitimate First Amendment activity, the statute “allows police to severely chill the observation and/or documentation of police activity in a public street, sidewalk or other public space,” it said.

Under HB-1186, an officer “can simply order an individual to stay back without any justifiable reason,” said the brief. Officers also may “band together” and spread out to create “a web of 25-foot stay-back zones around the activity they want to remain unseen,” it said.

The U.S. Supreme Court “foreclosed” that type of “floating buffer zone” that restricts speech in its 1997 decision in Schenck v. Pre-Choice Network of Western N.Y., said the brief. HB-1186 “directly chills the constitutionally protected right to observe and photograph police performing their official duties in public,” it said. It’s “unworkable” because it imposes a perimeter that will “constantly be in flux,” it said. Whether “examined on its face or as a substantially overbroad law,” the statute “must be found to be unconstitutional,” it said.

The extent of the interference may present “complicated issues,” because the statute applies “to all people near an officer,” said the brief. That might explain why the district court “misapprehended this as only a question of unconstitutional overbreadth,” and failed to find such, it said.

Appellant Nicodemus argues that “a more direct question of unconstitutionality,” based on the activity restricted and the “unbridled discretion" granted to police officers, governs the outcome of this case, said the brief. But the repeated application of the law against journalists “tells a different story,” it said.

The six news media associations assert that HB-1186 “is unconstitutional as an impermissible burden on speech and the press,” said their amicus brief. It’s also “a content-based restriction that fails strict scrutiny, and because of its overbreadth, must fail,” it said.

As Nicodemus’ appeal demonstrates, a restriction on approaching an officer within 25 feet after being ordered not to do so under any circumstances “covers instances where an individual may be attempting to come closer to better observe and/or document an officer’s actions in public,” said the brief. Such “arbitrarily” set distances “run counter to clearly established time, place and manner restrictions,” it said. That’s particularly so “when pre-existing law effectively governs attempts to interfere with officers,” it said.