In a federal court hearing Wednesday in Rapid City, the state of South Dakota argued that Republican Gov. Kristi Noem's "riot-boosting" bill does not target out-of-state individuals who support pipeline protests that turn violent.
Noem introduced Senate Bill 189 in the final week of the 2019 legislative session in anticipation of the Keystone XL pipeline that is now planned to run through several western South Dakota counties, including Pennington and Meade.
Opponents of the legislation, many wearing red t-shirts, filled the federal courtroom to see if Judge Lawrence Piersol would agree with a motion to prohibit the state from enforcing the law pending litigation. The state asked that the motion be dismissed.
The law passed overwhelmingly by the state Legislature reads that someone who "direct(s), advise(s), encourage(s) or solicit(s) any other person participating in the riot to acts of force or violence" can be found liable for triple the cost of damages incurred by the state, a local government or "an otherwise damaged third party," such as TC Energy (previously TransCanada).
The ACLU argued Wednesday the law violates the First and Fourteenth amendments to the U.S. Constitution, infringing upon rights to free speech and assembly, is vague, and does not clarify what speech is legal and what is not.
South Dakota Deputy Attorney General Rich Williams went back-and-forth with Judge Piersol, arguing the law only applies to violence-inducing speech made by a riot participant. Williams is representing Gov. Noem and Attorney General Jason Ravnsborg.
The argument differed from Noem's comments when she introduced the bill. In a March 4 news release announcing the bill package, she said, "This package creates a legal avenue, if necessary, to go after out-of-state money funding riots that go beyond expressing a viewpoint but instead aim to slow down the pipeline build."
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At a press conference the same day, Noem said that George Soros is the "most typical national offender" who funds violent out-of-state protesters.
Piersol replied to Wednesday’s arguments by the state, saying, "I don't think I can decide it on that basis because I think that the state's reading is not a correct reading of the statute.
"Frankly, I don't think I should completely ignore the fact that the whole billing of this, including press statements and everything else by leaders of the state government has been, 'We're going to get those outsiders,'" Piersol continued. "And now they're saying by a strange reading of this that it’s only going to be speech that is at the same time of the riot. If that is what this is intended for, that’s not the way I read the statute."
ACLU lawyer Stephen Pevar argued that the confusion surrounding the law is a constitutional violation by itself. The law is so vague and thus so open to interpretation by courts and law enforcement officers, he argued, that opponents are afraid to speak and assemble for fear of getting arrested and sent to prison.
Pennington County Sheriff Kevin Thom is included in the lawsuit and has motioned to be dismissed. His lawyer, Rebecca Mann, said that he should not be held liable for state laws. Plaintiffs argue that protests are likely to occur in Pennington County and Thom will be responsible for interpreting the law. Piersol did not rule on Thom's or any other motions Wednesday.
In a written statement following Wednesday's hearing, Kristin Wileman, a spokesperson for Gov. Noem, said: "The governor fully supports freedoms of speech and assembly. There must also be law and order. No one has the right to incite violence, and for those who do, there should be consequences for their actions."