Ind. AG Seeks to Stay Media Groups’ ‘Buffer Law’ Case, Pending 7th Circuit Appeal

Indiana Attorney General Todd Rokita (R) seeks a stay in the case brought by seven media organizations to block enforcement of the state's "buffer law,” pending the outcome of a YouTuber’s appeal (docket 24-1099) in the 7th U.S. Circuit Court of Appeals (see 2401230006), said Rokita’s motion Wednesday (docket 1:23-cv-01805) in U.S. District Court for Southern Indiana in Indianapolis. The media organizations, which include Nexstar, Scripps, Tegna and the Indianapolis Star, all oppose the stay, said Rokita’s motion.

HB-1186, which took effect July 1, makes it a misdemeanor for the news media to approach within 25 feet of police officers on active duty. Donald Nicodemus’ appeal seeks to reverse the district court’s Jan. 12 decision denying his motion for a permanent injunction against the buffer law. The opening brief in his appeal is due March 11.

Nicodemus periodically livestreams police encounters on his YouTube channel. He asserts that on July 20, South Bend police moved him back from a shooting investigation in town, referencing HB-1186 while he continued to film. Like the media organizations in the case against Rokita (see 2310100026), Nicodemus is challenging HB-1186 on First Amendment grounds.

The 7th Circuit’s determination of various issues raised in Nicodemus’ appeal against South Bend “will give clear answers to numerous identical arguments raised” in the media organizations’ case against Rokita, said the Indiana AG’s motion for a stay. A stay “would simplify these issues, streamline the trial, and reduce litigation burdens,” it said. A stay also wouldn’t prejudice the media organizations, it said. The 7th Circuit’s ruling in Nicodemus’ appeal “will undoubtedly be determinative regarding many issues in the present case,” it said.

A stay will present “little disadvantage or prejudice” to the media organizations, said Rokita’s motion. Briefing is completed on all pending substantive motions, “so there can be no tactical disadvantage,” it said.

The media organizations have demonstrated that they face “no urgency in receiving the preliminary injunction they seek” to block enforcement of HB-1186, said the motion. “Indeed, they delayed significantly” in moving for injunctive relief, and “delayed even more in filing their brief in support of that motion,” it said.

The media organizations weren’t only aware of the buffer law even before it was signed into law but also had “weighty and numerous concerns about it as early as its introduction” in the Indiana legislature, said Rokita’s motion. But despite their concerns about HB-1186, they didn’t file their complaint until Oct. 6, five and a half months after the buffer law was signed into law, it said. They then waited another month after that to file their motion for preliminary injunction, then waited yet another month to file their memorandum in support of the injunction, it said.

These facts demonstrate that the media organizations themselves “accord no great urgency” to the preliminary injunction they seek, said Rokita's motion. Further demonstrating this is that they intend either to continue their reporting as always with no buffer law-inspired change in their practices, or to err on the side of caution, it said. They have failed “to articulate any instance in which such caution has been employed or actual reporting practices have changed,” it said.

A stay to await the 7th Circuit’s determination in the Nicodemus appeal will plainly simplify the issues in question and streamline the trial, said Rokita’s motion. Just as the media organizations have done, Nicodemus asserted “a facial, First Amendment challenge” to the buffer law, it said. Nicodemus and the media organizations “raised many of the same arguments” against it, it said.

Likewise, many of the defenses raised in both cases were the same, said Rokita’s motion. South Bend argued in the Nicodemus case that any burden imposed by the buffer law “was only incidental to its regulation of conduct,” and the district court agreed, it said. The same is true of the argument and finding that the buffer law’s plainly legitimate sweep “well exceeds any potential illegitimate applications thereof,” it said.

Though no 14th Amendment vagueness challenge was raised in the Nicodemus case, the issues raised by the media organizations in their vagueness claim “significantly overlap with the issues raised in their unbridled discretion argument,” said Rokita’s motion. Both require a determination of whether the law “is clear enough to prevent arbitrary enforcement,” it said: “That determination will likely also be determinative of whether the law is clear enough to allow citizens to understand what is prohibited.”