Gov. Kristi Noem and Attorney General Jason Ravnsborg said this week that a new law aimed at potential protests against the Keystone XL oil pipeline does not violate the First Amendment.
Senate Bill 189 "was passed to address acts of force or violence during potential protests" and does not violate one's right to protest and free speech, the pair said in a federal court filing. The law creates no "objectively reasonable fear of prosecution for protected speech."
The document was filed in response to a lawsuit by the ACLU that says the new law, along with two riot-related statutes, violate the First and Fourteenth amendments by discouraging free speech and being unclear about what exact actions are considered boosting or encouraging a riot.
SB 189 establishes a legal avenue and funding source for the state to pursue out-of-state sources that "riot boost" or fund violent protests. Those found guilty of breaking the law can be sent to prison for up to 25 years.
Noem and Ravnsborg also denied the ACLU's statement that Noem didn't meet, listen or negotiate with any environmental group or Native American tribe about the law.
"All citizens of the state, including tribes, tribal members, and environmental groups, were equally allowed to participate in the legislative process," the response says.
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Noem's office previously said it consulted with lawmakers, law enforcement officials and TransCanada before publishing the bill while Native American tribes said they weren't included in the discussions.
Noem and Ravnsborg agreed with the ACLU that one doesn't need to be present at a protest to be liable under the law.
They also agreed with the accuracy of quotes by Noem and her allies that describe the law as not just targeting violence, but people and activity that disrupts or delays construction of the pipeline. But they wrote that these quotes don't accurately portray the intent of the law and aren't relevant in deciding whether the law is constitutional.
They cite case law they say has ruled "isolated statements cannot be said to be the view of the Legislature as a whole" and "intent of one or more legislators or sponsors is without legal significance."
Noem and Ravsnborg ask the judge to dismiss the case because no harm has occurred and because they have "sovereign immunity."
Pennington County Sheriff Kevin Thom, also named in the lawsuit, has not yet responded to the ACLU lawsuit.