RCFP attorneys urge court to halt enforcement of Indiana ‘encroachment’ law

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On Friday, Reporters Committee attorneys filed a motion for a preliminary injunction in a challenge to Indiana’s “encroachment” law, which criminalizes standing within 25 feet of a law enforcement officer after being told to stay back. The case, which was filed in October, was brought by the Reporters Committee for Freedom of the Press, The E.W. Scripps Company, Indiana Broadcasters Association, Indiana Professional Chapter of the Society of Professional Journalists, Indianapolis Star, Nexstar Media Inc., and TEGNA Inc.

The motion relies on declarations from Indiana-based journalists who explain how the law has changed the way they do their job. They say, for instance, that the law has prompted them to stand back from a scene or in a particular area rather than walking around it to capture different angles and see more of what is going on. As one journalist recounted, the consequences of this are impossible to quantify, since journalists “can never know what newsworthy information [they are] missing.” Journalists also expressed concerns about complying with orders to retreat 25 feet when reporting in big crowds.

For these reasons, among others, the motion argues that the law poses a serious threat to the constitutional rights of journalists in Indiana and that its enforcement must be halted.

First, the motion explains that the plaintiffs have standing to challenge the law — even though it has not been enforced against them yet — because they have changed their behavior as a result of it: Journalists have altered the way they gather the news, press freedom groups have reallocated resources to address the law, and newsroom managers have answered questions from their reporters about the law, among other things.

Second, the motion argues that the law violates the First Amendment rights of journalists, in particular, because of its impact on their ability to gather and report the news and because the U.S. Court of Appeals for the Seventh Circuit, which includes Indiana, has recognized there is a constitutional right to record law enforcement in public. Though the law purports to be justified by officer safety, it is not tailored to that end: It allows law enforcement officers, at their discretion, to infringe on a reporter’s right to record even when the reporter has done nothing to interfere with officers doing their job.

Finally, the motion explains that the law is both overbroad and vague on its face. Indiana law already prohibits conduct that interferes with law enforcement. So this law’s only operative effect is to punish people who approach law enforcement officers for permissible First Amendment purposes. The law’s author, Republican state Rep. Wendy McNamara, said as much in a hearing about the law when it was being discussed by the Indiana Legislature. The statute, she said, was intended to prevent members of the public from “getting more and more involved in a situation that’s none of their business.”

We hope the court will agree that this law’s flagrant constitutional problems warrant an injunction. As always, we’ll keep you posted.

The Technology and Press Freedom Project at the Reporters Committee for Freedom of the Press uses integrated advocacy — combining the law, policy analysis, and public education — to defend and promote press rights on issues at the intersection of technology and press freedom, such as reporter-source confidentiality protections, electronic surveillance law and policy, and content regulation online and in other media. TPFP is directed by Reporters Committee attorney Gabe Rottman. He works with RCFP Staff Attorney Grayson Clary and Technology and Press Freedom Project Fellow Emily Hockett.