YouTuber Presses His Case That Ind. ‘Buffer Law’ Violates First Amendment

The First Amendment “protects a person’s right to view, approach, listen to, and record law enforcement, provided that there is no interference with police activity,” said plaintiff-appellant Donald Nicodemus’ reply brief Monday (docket 24-1099) in the 7th U.S. Circuit Court of Appeals in opposition to Indiana’s “buffer law.”

The statute (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 away from a shooting investigation in town, referencing HB-1186 as they did so.

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

But HB-1186 “directly impacts” Nicodemus’ First Amendment rights “as it allows officers to push persons who wish to see, hear, and record police activity back 25 feet or farther from the activity for any reason,” said the reply brief. Contrary to the state’s contention that HB-1186 regulates conduct, not speech (see 2405150002), a law that generally functions as a regulation of conduct “is subject to the most rigorous scrutiny under the First Amendment” if the conduct triggering coverage under the statute consists of communicating a message, it said. HB-1186 “is such a law” in that communicative conduct, such as Nicodemus’, “can trigger application of the statute,” it said.

Inasmuch as the statute imposes a direct burden on First Amendment rights, it must, among other things, “be content neutral,” said the reply brief. The requirement of content neutrality is violated “if a statute that negatively impacts First Amendment rights contains no standards, granting unbridled discretion to those enforcing it,” it said.

It’s clear “from the face” of HB-1186 that the statute “contains no standards to limit the discretion of police in deciding when to use it and against whom,” said the reply brief. This lack of standards in a state statute can’t be “remedied or supplemented by a policy statement” of the South Bend police, it said. South Bend is “one of hundreds of local government units in Indiana” that predates the statute and wasn’t relied on in any way during the statute’s enforcement against Nicodemus, it said.

Because HB-1186 contains no standards, and isn’t content neutral and must satisfy strict scrutiny, “it must be narrowly tailored to serve a compelling governmental interest,” said the reply brief. But the statute isn’t “tailored at all,” it said: “Instead it allows First Amendment rights to be quashed for no reason, or for reasons that change from officer to officer and from observer to observer. The statute fails strict scrutiny.”

Even if strict scrutiny doesn’t apply, HB-1186 “must satisfy intermediate scrutiny as it has at least an incidental burden on First Amendment expression,” said the reply brief. Under intermediate scrutiny, the statute must be narrowly tailored to serve a significant governmental interest, and it must leave open ample alternative channels of communication, it said. Though the state appellees don’t dispute that intermediate scrutiny should be applied, “they erroneously argue that the statute satisfies this scrutiny,” it said: “It does not.”

Though it’s “certainly reasonable” for a statute to prohibit conduct that actually interferes with police activity, HB-1186 “obviously extends further than this,” impacting much more than the evil that Indiana can “legitimately remedy,” said the brief. It’s not narrowly tailored, it said: “Given that the statute can prevent persons from effectively seeing, hearing, and recording police activity, it fails to leave open ample alternative channels to reach the intended audience of these persons.”