A group called People Helping People heard of potential civil rights abuses and harassment occurring at Border Patrol checkpoints in Arizona—interior ones, not right at the border—so started a campaign to monitor such activity. The Border Patrol then decided to prohibit any recording within 150 feet of their location, which includes the public roadside.

A federal district court found that the new rule was a valid time, place, or manner restriction on First Amendment-protected activity. Cato, with the assistance of the UCLA Law School First Amendment Clinic and noted scholar Eugene Volokh, has filed an amicus brief asking the U.S. Court of Appeals for the Ninth Circuit to reverse that ruling.

Recording of law enforcement officers engaged in the public performance of their duties promotes the free discussion of government affairs. The roadside in this case is a “traditional public forum” of the sort that the Supreme Court has held to be required to be open to First Amendment-protected activities. The Border Patrol even got a permit that requires that the facilities be “maintained in a manner that will not interfere with the reasonable use of the public right-of-way.” The government cannot choose to shut down such a forum when it is still being used as a public thoroughfare.

There is also evidence that the Border Patrol closed this area specifically in retaliation for People Helping People’s First Amendment activities; new barriers were added within hours of the start of the monitoring program, making it significantly harder to film, and passers-by were told that the barriers were there only to exclude protesters.

The restriction is also not valid because it does not leave open “alternative channels of communication,” as the Supreme Court has required. In McCullen v. Coakley (2014), the Supreme Court struck down a 35-foot buffer zone around an abortion clinic because it burdened more speech than was necessary to advance the government’s interest. A 150-foot buffer zone burdens even more speech, entirely preventing the recording of law enforcement officers, rather than merely regulating the means of doing so.

Even if this were not a public forum, the Border Patrol’s policy constitutes viewpoint discrimination because it allowed observers who were critical of People Helping People to enter the enforcement zone and record. At base, this restriction is unreasonable because there is no articulable reason to prohibit recording from a public roadside that doesn’t interfere with the Border Patrol’s activities.

When the Ninth Circuit takes up Jacobson v. Department of Homeland Security later this spring/​summer, it should reverse the district court and strike down the Border Patrol’s buffer zone.