The state of play in the legal battle over police ‘buffer zone’ laws

Earlier this month, the U.S. Court of Appeals for the Seventh Circuit delivered a huge win for journalists in Reporters Committee for Freedom of the Press v. Rokita, striking down an Indiana law that makes it a crime to approach within 25 feet of a law enforcement officer after being told to stop. The appeals court found the law unconstitutionally vague, siding with arguments made by Reporters Committee attorneys on behalf of a coalition of journalism and news organizations. 

The ruling marks the latest victory in our ongoing fight against so-called police “buffer zone” laws, which interfere with journalists’ right to gather news and report on law enforcement activity. It comes after favorable decisions by district courts in Indiana and Louisiana, both of which also struck down the laws for being unconstitutionally vague. Last month, Reporters Committee attorneys filed a third lawsuit on behalf of a media coalition challenging a substantially similar law in Tennessee.

Now that a federal appeals court has finally weighed in on one of these cases, we thought it was a good time to check in with Reporters Committee Staff Attorney Grayson Clary, who has litigated all three buffer zone lawsuits. In the Q&A below, Clary discusses the significance of the Seventh Circuit’s ruling and the warning it sends to state legislatures.

What’s the big takeaway from the appeals court’s decision?

This is a big victory for journalists and for all members of the public in Indiana. The ruling vindicates the concerns we’ve raised about these police buffer zone laws from the start, which is that they just give law enforcement officers too much discretion to decide who is and who isn’t going to be allowed to get close enough to see, hear, and ultimately report on what police officers do in public.

At oral argument before the Seventh Circuit, Indiana really bit the bullet on just how broad this law was; the state agreed that an officer under the statute could tell you to get lost just because he had had a bad breakfast that day and didn’t want to be near you. And I think the Seventh Circuit said in the strongest terms possible that the Constitution demands better. It was reassuring to see the court push back against the state’s argument and forcefully say no, this is a government of laws, not men, as the John Adams quote goes. There needs to be a clear standard that tells both officers and the public when law enforcement can and can’t interfere with the exercise of First Amendment rights.

How might the Seventh Circuit’s decision impact what happens in the ongoing buffer zone cases in Louisiana and Tennessee?

Louisiana’s law is very close to a copycat; it’s actually a little bit broader than Indiana’s law. So we’ve argued to the Fifth Circuit that the Seventh Circuit’s ruling is directly on point here, and you ought to take the same course. Argument hasn’t been scheduled yet in that case, but we’re certainly going to be trying to persuade the court that the Seventh Circuit got it right, and that for all of the same reasons that Indiana’s law didn’t pass constitutional muster, Louisiana’s even broader statute doesn’t either.

Tennessee will be a sort of test of where these laws go next. Indiana and Louisiana were the first wave of these police buffer laws. They’re the broadest versions, in that they apply everywhere no matter what an officer is doing and you can be told to back up for any reason. Under Tennessee’s law, you can still be told to back up for any reason or for no reason, but only in specific situations, like when an officer is at the scene of a crime.

Now, we don’t think that does enough to make the statute better — you still have the same fundamental due process problem, which is that there’s no standard to guide an officer in deciding who should be ordered back. And the situations where the law applies are worded broadly enough to catch most of the scenarios where the press encounters police officers in public, like a demonstration where someone somewhere in the crowd might’ve broken the law. But we’ll see what Tennessee has to say about that, and how much it does or doesn’t matter that Tennessee has taken a slightly narrower tack than the states that came before it.

What kind of influence could the Seventh Circuit’s ruling have on state legislatures that are considering passing similar laws?

What the Seventh Circuit’s ruling should make clear is, if states want these laws to survive a constitutional challenge, they need to be tethered to real harms, to real obstruction, to real risks to public safety. It’s not enough to just say that sometimes officers don’t want you to be that close — there has to be a bona fide reason for ordering people to move back. Otherwise, these laws are going to continue to face problems under the due process clause.

We hope that this is a bucket of cold water on the trend toward these police buffer laws, and that to the extent states still try to go down this road, they realize they’re going to have to narrow these statutes substantially if they want them to stand up in federal court. And we hope that will provide some concrete relief for the many journalists who need to be able to do their own jobs when police are nearby.