Seventh Circuit Upholds Constitutionality of Indiana’s Buffer Law

Seventh Circuit Upholds Constitutionality of Indiana’s Buffer Law

  Wednesday, June 04, 2025    Julie Tappendorf

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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)

Post Authored by Rachel Defries & Julie Tappendorf, Ancel Glink

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School Board Member's Blocking of Users on Social Media Violated First Amendment

School Board Member's Blocking of Users on Social Media Violated First Amendment

  Tuesday, June 03, 2025    Julie Tappendorf

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Last March, we reported on two cases decided by the U.S. Supreme Court addressing challenges to government officials' deletion of comments and blocking of users from their personal social media pages. (Lindke v. Freed and Garnier v. O'Connor-Ratcliff). The U.S. Supreme Court adopted a new two-part test for when a government official's social media activities on their personal accounts might tigger the First Amendment. The Court held that a government official can be liable under the First Amendment for actions taken on their personal social media accounts if (1) the official had the authority to speak on behalf of the government and (2) the official exercises that authority. The Supreme Court then remanded the two cases back to the lower courts to apply the new test.

Last month, the Ninth Circuit Court of Appeals issued a ruling in the Garnier v. O'Connor-Ratcliff case. That case involved a challenge to two school board members who had blocked parents from their personal social media pages. The Ninth Circuit applied the U.S. Supreme Court's new two-part test. First, the Ninth Circuit held that one of the board members (the school board president) had actual authority to speak on the school district's behalf through California state statute and the school district's bylaws that encouraged electronic communication of school business and delegated communication authority to the board president. Second, the Ninth Circuit held that the board president was purporting to exercise that official authority on the president's social media accounts when she regularly communicated about district business, and had no disclaimer that her views were personal rather than official. The Ninth Circuit concluded that the board president's social media activities constituted "state action" under the civil rights statute and, as a result, the First Amendment limited her abilities to delete comments or block users if those actions would violate users' free speech rights. The Ninth Circuit found the case against the other board member was moot because he was no longer on the school board.

The Ninth Circuit acknowledged that public officials can limit the risk of liability as the U.S. Supreme Court advised last year, stating as follows:

We emphasize that public officials assuredly do have the right to speak on public affairs, including issues related to their official duties, in their personal capacity. As the Supreme Court advised in Lindke, public officials can limit the risk of liability for personal speech on social media by, for instance, “keep[ing] personal posts in a clearly designated personal account,” including a disclaimer, or refraining from labelling their personal pages as official means of communication. (cite omitted)

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Illinois Supreme Court Upholds Village's Prosecution of Cannabis DUI For Driver’s Education Student

Illinois Supreme Court Upholds Village's Prosecution of Cannabis DUI For Driver’s Education Student

  Monday, June 02, 2025    Julie Tappendorf

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In Village of Lincolnshire v. Olvera the Illinois Supreme Court upheld the conviction of a 16-year-old high school student for driving under the influence (DUI) during a driver’s education class. 

The Village brought state DUI charges against the student, who was later found guilty in a bench trial. The student appealed and his case made its way to the Illinois Supreme Court, where he argued that (i) the Village lacked authority to prosecute the DUI and (ii) there was insufficient evidence to prove he was under the influence of cannabis.

The student claimed that the Village lacked authority to prosecute the DUI because it failed to present written permission from the State to prosecute the case under state statute. He argued that the Village was required to submit evidence of its written permission into the record during trial. Both the Appellate Court and the Illinois Supreme Court rejected that argument, holding that the statute does not require the Village to submit written authority into the record at trial.

The student also argued that the Village failed to prove beyond a reasonable doubt that he was under the influence of cannabis, and that it was to a degree that “rendered him incapable of safely driving.” The Illinois Supreme Court noted that at trial, the Village presented testimony from the driving instructor, who observed the defendant’s erratic driving, head slumping, nervousness, and failure to stop the vehicle, which required the instructor to manually intervene several times by grabbing the wheel or applying the instructor-side brake. The instructor testified that by itself this behavior is often observed in any nervous inexperienced driver, however additional evidence supported the DUI charge, including the student's failure of multiple field sobriety tests administered by the school resource officer. Although, the student did not exhibit the smell of burnt cannabis, a student safety search revealed a “joint” in his wallet. Also, the student acknowledged possession of marijuana and admitted to the Dean of Students that he had used marijuana the night before. Surveillance footage from the high school was admitted into evidence showing the student stumbling through the school hallways before exiting to the driver’s education vehicle.

When viewing all evidence in the light most favorable to the State, the Illinois Supreme Court held that the evidence supported a finding beyond a reasonable doubt that the student was under influence of cannabis and was incapable of safely driving, upholding his conviction.

Post Authored by Glen Batista and Megan Mack, Ancel Glink

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