A federal judge temporarily blocked South Dakota from enforcing two anti-riot laws and parts of a new law aimed at protests against the Keystone XL Pipeline, saying the laws threaten the First Amendment.
“The state has a substantial government interest in criminalizing participation in a riot with acts of force or violence,” Judge Lawrence Piersol wrote in a Wednesday order. But the three laws “go far beyond that appropriate interest and … do impinge upon protected speech and other expressive activity as well as the right of association.”
The three laws violate the First and Fourteenth Amendments by discouraging free speech and being unclear about what exact actions are considered boosting or encouraging a riot, the ACLU argued in its lawsuit against Gov. Kristi Noem, Attorney General Jason Ravnsborg and Pennington County Sheriff Kevin Thom.
SB 189, also called the riot-boosting act, was passed last minute during the most recent legislative session in anticipation of protests against the Keystone XL Pipeline that could be similar to those against the Dakota Access Pipeline in North Dakota. Noem’s office coordinated with representatives of TC Canada (the company formerly known as TransCanada that wants to build the pipeline), law enforcement, local governments and state agencies to draft the bills, but did not consult with South Dakota's nine Native American tribes, which have spoken out against the project.
The bill 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. The ACLU’s lawsuit also challenges SDCL 22-10-6 and 22-10-6.1, which make it illegal to encourage or solicit violence during a riot whether one is participating in it or not.
“The so-called ‘Riot Boosting’ Act was clearly intended to suppress constitutionally-protected, peaceful protests of the Keystone XL pipeline,” ACLU attorney Stephen Pevar said in a news release. “We’re glad the court recognized that these vague and overbroad laws threaten the First Amendment rights of South Dakotans on every side of the issue.”
The ACLU sued on behalf of the Sierra Club, Indigenous Environmental Network (IEN), Dakota Rural Action and NDN Collective. Dallas Goldtooth of IEN and Nick Tilsen, a Rapid City resident who founded NDN Collective, are also named as plaintiffs. All say they are planning to protest the pipeline and encourage others to do so, but fear criminal or civil liability under the laws.
Through spokespeople, Noem and Ravnsborg declined to comment since the litigation is ongoing. But the pair argued in their response to the lawsuit that the trio of laws don’t chill or prevent free speech.
Piersol wrote that the parts of laws that say people can’t “direct” another person to be violent in a protest or riot can stand. But he said the parts that ban people from “advising, encouraging or soliciting” are too vague to be enforced because they don’t “give the person of ordinary intelligence a reasonable opportunity to know what is prohibited.”
A group of ranchers could be found liable under the riot-boosting act if they told a TC Energy truck driver to get off their property, Piersol said.
He also said Dr. Martin Luther King could have been impacted by a similar law, since he encouraged people to take direct action by breaking unjust, racist segregation laws in his "Letter from Birmingham Jail."
King and his Southern Christian Leadership Conference “could have been liable under an identical riot-boosting law for the many types of damages which could be claimed under (the riot-boosting law) for soliciting, advising or encouraging another person to break the law,” Piersol wrote.
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In discussing the public interest of the laws, Piersol pointed out that the riot-boosting law could let not just South Dakota counties and taxpayers recover expenses but also TC Energy, the private Canadian company behind the pipeline.
Giving money to TC Energy does “not meet the public policy concerns that are applicable to the taxpayers of the involved counties,” he wrote.
He also questioned the law’s goal of cracking down on out-of-state protest supporters.
“Is one goal to keep outsiders out?” Piersol asked. “If so, that is not a laudable goal as we are a nation of 50 states with each citizen in any state having the same rights of free speech and assembly in every state.”
What’s most important in the public interest is to preserve First Amendment rights which “will be thwarted if the unconstitutional portions of the riot-boosting legislation remain in effect,” Piersol wrote.
Sheriff Thom dismissed from suit
Sheriff Thom was dismissed from the lawsuit earlier Wednesday.
The three laws are state policies "not fairly traceable to Sheriff Thom" since the plaintiffs haven't shown that Thom made decisions about enforcing the laws that could violate their First Amendment rights, Piersol wrote in a separate order.
But he said the plaintiffs can amend their complaint if they ever identify a Pennington County policy or practice that is a "moving force" against their rights.
“I felt my inclusion in the lawsuit was improper from the beginning and am pleased the judge agreed and dismissed me from the lawsuit," Thom said in an email about his motion being granted.
The ACLU named Thom in its lawsuit because it suspects protests will take place near Rapid City, Janna Farley, spokeswoman for the ACLU of South Dakota, previously told the Journal.
Preparations for the Keystone XL project –- which is being challenged in court –- are taking place in South Dakota but not the actual construction of the pipeline, Piersol wrote in his main order.