ACLU Sues to Protest South Dakota’s Anti-Protest Laws 

(CN) – When the government puts increasing constraints on free speech through protests, litigation remains as an avenue of expression – and that’s the route the American Civil Liberties Union took Thursday in response to South Dakota’s slew of anti-protest laws, including the recently passed Riot-Boosting Act.

South Dakota’s newest law imposes financial punishments on individuals caught “riot-boosting,” a term that encompasses the actions not only of protestors who engage in rioting, but also anyone who “directs, advises, encourages, or solicits other persons participating in the riot to acts of force or violence.”

Governor Kristi Noem signed the bill Wednesday, which took effect immediately due to its emergency clauses.

All this concern over protests comes primarily in response to controversy surrounding TransCanada Corp.’s Keystone XL oil pipeline.

The American Civil Liberties Union and ACLU of South Dakota sued Governor Noem, South Dakota Attorney General Jason Ravnsborg and Pennington County Sheriff Kevin Thom on behalf of organizations planning to protest the 1,179-mile oil line.

According to the 29-page lawsuit, “Plaintiffs must choose between encouraging and advising pipeline protesters, on the one hand, and exposing themselves to prosecution and civil liability under the Challenged Laws, on the other. Refraining from encouraging and advising protesters constitutes self-censorship and a loss of Plaintiffs’ First Amendment rights.”

In a release from her office, the Governor said while she supports lawful protest, she also defends the law she introduced to protect South Dakota from rioters.

“I fully support the freedoms of speech and assembly, but we must also have clear expectations and the rule of law,” Governor Noem said Wednesday. “My pipeline bills make clear that we will not let rioters control our economic development. These bills support constitutional rights while also protecting our people, our counties, our environment, and our state. I’m proud of this proactive approach that will spread the risks associated with pipeline construction, and I’m glad to sign it into law today.”

But the ACLU says the Riot-Boosting Act and South Dakota’s other anti-protest laws violate the First and Fourteenth Amendments by failing to properly define what actions taken by protesters would constitute violations that would result in civil and criminal penalties.

“No one should have to fear the government coming after them for exercising their First Amendment rights,” Courtney Bowie, legal director of the ACLU of South Dakota, said in a statement. “That is exactly what the Constitution protects against, and why we’re taking these laws to court. Whatever one’s views on the pipeline, the laws threaten the First Amendment rights of South Dakotans on every side of the issue.”

“This country has always become better when people have taken to the streets, fields, and halls of injustice,” Nick Tilsen, president and CEO of NDN Collective, said in a statement. The Native American advocacy group is one of the plaintiffs in the ACLU lawsuit. “This law is so broad and vague that simply supporting people on the ground through donations of supplies, financial assistance, or by organizing support pages on social media could make individuals or organizations subject to criminal or civil penalties if anything deemed as ‘violence’ breaks out at the protest. It wouldn’t matter if the person or organization who made the donation was even at the protest. The state could go after them and this would make a lot of people think twice about supporting or joining a protest.”

Dakota Rural Action, the Indigenous Environmental Network, activist Dallas Goldtooth, the Sierra Club and Nick Tilsen are also listed as plaintiffs.

The Keystone XL pipeline is currently on hold after the Ninth Circuit rejected TransCanada’s appeal to overturn a decision made last year to stop pre-construction. If completed, the line could carry approximately 830,000 barrels of oil each day.

Subscribe to Closing Arguments

Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.

Email *

Submit