The State of Indiana has a “buffer law” that makes it
a crime for a person to knowingly or intentionally approach
an officer who is “lawfully engaged in the execution of the law enforcement officer’s duties after the law enforcement officer has ordered the person to stop approaching.” A citizen journalist who maintains a YouTube channel
with over 23,000 subscribers, records and livestreams police conduct in the
City, was told by City police officers to move backwards while he was recording the police after shots were
fired, invoking the buffer law. The citizen journalist filed a lawsuit against the City, bringing a “facial challenge” to the buffer law, meaning he challenged its constitutionality “on its face” rather than
as it was applied to him specifically. The district court ruled in favor of the City, finding the buffer law to be constitutional because it only had an
“incidental effect” on the public’s First Amendment right to
record and scrutinize police activity. He appealed to the Seventh Circuit Court of Appeals.
The Seventh Circuit upheld the ruling in favor of the City. First, the Seventh Circuit determined that the buffer law was
content-neutral, because it regulates all forms of speech equally.
Next, the Seventh
Circuit determined that the law was narrowly tailored because it does
not burden substantially more speech than necessary to further the government’s
interests in passing the law. The Court found that the buffer law reasonably
served the government’s interest in maintaining police, citizen, and onlooker
safety and protecting the integrity of police investigation. Because the law still allows those
who are already present and recording to continue doing so beyond the buffer area, the Court held that
the law does not burden substantially more speech than necessary.
Finally, the Court determined there were adequate open alternative channels of
communication because under the buffer law, an onlooker could stay in place and record, or move to a
different location to record, as long as they were not approaching an officer
after being told to stop. As a result, the Seventh Circuit upheld the state’s buffer law finding it to be a reasonable “time, place, and manner” restriction within the bounds of the First Amendment. Nicodemus v. City of South Bend, Indiana, No. 24-1099 (7th Cir. 2025)