Ind. ‘Buffer Law’ Regulates Conduct, Not Speech, Says AG’s Appellee Brief

The district court properly denied plaintiff-appellant Donald Nicodemus’ motion for injunctive relief to block Indiana Attorney General Todd Rokita (R) from enforcing HB-1186, the state’s “buffer law,” said Rokita’s appellee brief Friday (docket 24-1099) in the 7th U.S. Circuit Court of Appeals.

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.

Nicodemus’ appeal seeks to reverse the U.S. District Court for Northern Indiana’s denial of his motion for an injunction to block HB-1186 on First Amendment grounds (see 2401160011). The court found that the statute isn’t unconstitutional by virtue of its being overbroad and because HB-1186 “has many legitimate applications.”

Nicodemus’ appeal “skips over the most important question” of whether application of the buffer law can result in substantial harm to First Amendment freedoms, said Rokita’s brief. Nicodemus fails to “meaningfully question” the district court’s findings concerning “the plethora of alternative avenues available” under the buffer law, it said. He also fails to demonstrate that the buffer law isn’t “properly tailored to the numerous substantial and compelling interests it serves,” it said. The 7th Circuit “should affirm the district court,” it said.

The buffer law doesn’t regulate speech, it regulates conduct, said Rokita’s brief. While there’s a First Amendment right to record police activity, “no court has ever held that this includes a right to do so from as near a proximity as one desires,” it said. Though Nicodemus “leans on numerous cases” in which laws facially targeting First Amendment rights were struck down, the buffer law “is not such a law,” it said: “Nowhere in its text is speech, recording, or anything else that could be considered First Amendment conduct mentioned.”

As the district court properly found, HB-1186 “is directed toward encroachment,” said Rokita’s brief. A law that can’t hinder First Amendment rights can’t be used to target them, it said.

Nicodemus provides little reason to question the district court’s rationale for finding that any First Amendment effect of the buffer law is “merely incidental,” said Rokita’s brief. He doesn’t explain “why the zoom lenses that exist in the phones found in nearly everyone’s pocket might not be able to capture activity from a mere 25 feet away,” nor what constitutional basis there might be to challenge the buffer law as preventing the recording of private conversations, it said.

Nor do the cases that Nicodemus relies on most heavily “have anything to do with laws that do not facially implicate First Amendment conduct, or with the effect of a buffer zone on recording,” said Rokita’s brief. “As a result, his argument fails to gain any traction,” it said.

Nicodemus provides no “persuasive basis” for his argument that, at bottom, constitutes a claim that strict scrutiny must be applied to any law that, as a result of officer discretion, has any effect, even incidental, on First Amendment conduct, said Rokita’s brief. He provides no precedent under which a minor, incidental threat to First Amendment freedoms arising from officer discretion “may render a law subject to facial invalidation,” it said: “Such threats are precisely the type of scenario that as-applied challenges are designed to address, if and when an improper use of discretion arises.”