By Amber Penn-Roco

On March 11, 2019, in the wake of the worldwide NoDAPL movement, South Dakota passed a law that prohibits “riot boosting”—an ambiguous term that is broadly written to include both participating in a riot and directing, advising, encouraging or soliciting other people to participate in a riot. The law threatens advocates with fines, civil liabilities, and criminal penalties of up to 25 years in prison.

As outlined by the ACLU in its Complaint, the law targets anti-pipeline protests and protesters. The law was rather obviously passed in response to Indigenous protests against the Dakota Access Pipeline, in hopes of preventing protests in South Dakota against the Keystone XL Pipeline.

The Governor of South Dakota drafted the law in consultation with TC Energy, the company developing the Keystone XL Pipeline. The Governor has been particularly outspoken about water protectors, mischaracterizing them as “out-of-staters who come in to disrupt” and as “paid protesters.”

The ACLU filed its lawsuit on behalf of four organizations: the Sierra Club, NDN Collective, Dakota Rural Action, and the Indigenous Environmental Network; and two individuals: Nick Tilsen with NDN Collective and Dallas Goldtooth with Indigenous Environmental Network. All are currently protesting or are planning to protest the Keystone XL Pipeline.

The ACLU’s suit claims the “riot boosting” law is unconstitutional under the First and Fourteenth Amendments of the Constitution and filed a preliminary injunction motion on April 9, 2019 to prevent the riot boosting law from being enforced. On September 18, 2019, the U.S. District Court issued an Order granting the ACLU’s motion and blocking the enforcement of several provisions of the new law.

U.S. District Court Judge Lawrence L. Piersol wrote: “Imagine that if these riot boosting statutes were applied to the protests that took place in Birmingham, Alabama, what might be the result? . . . Dr. King and the Southern Christian Leadership Conference could have been liable under an identical riot boosting law[.]” Quoting Dr. King, the Judge continued: “’an unjust law is no law at all’ and . . . ‘to deny citizens the First Amendment privilege of peaceful assembly and peaceful protest, then it [permitting] becomes unjust.’”

This is a promising boost for the ACLU and our water protectors.

Amber Penn-Roco is an Associate with the Seattle office of Galanda Broadman, PLLC. Amber’s practice focuses on the protection of tribal environmental, natural and cultural resources. Her practice also includes promoting the economic development of tribes. She is an enrolled member of the Chehalis Tribe.