UPDATE: In a settlement agreement, approved by U.S. District Judge Lawrence Piersol, Gov. Kristi Noem and Attorney General Jason Ravnsborg backed down from their unconstitutional attempts to silence pipeline protestors.

ACLU Files First Amendment Challenge to South Dakota Anti-Protest Laws

The American Civil Liberties Union and ACLU of South Dakota filed a federal lawsuit challenging three South Dakota laws threaten criminal penalties of up to 25 years in prison and $50,000 fines and/or civil liabilities for protesters and social justice organizations that encourage or organize protests, particularly protests against the Keystone XL pipeline.

The lawsuit was filed 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 planning to protest the pipeline and/or encourage others to do so.

The lawsuit asserts that the laws, which include the newly-enacted “Riot Boosting” Act, violate the First and Fourteenth Amendments to the Constitution by chilling protected speech and failing to adequately describe what speech or conduct could subject protesters and organizations to criminal and civil penalties.

The Riot Boosting Act, which was passed during the 2019 South Dakota legislative session, gives the state the authority to sue any individual or organization for “riot-boosting,” or encouraging a protest where acts of violence occur. The law mirrors two existing state laws that criminalize similar speech. Under the laws, individuals and organizations — regardless of their intent to incite violence, the likelihood that their speech or conduct would result in violence, or the imminence of the intended violence—could be subject to civil and/or criminal penalties. Moreover, the laws do not clearly describe what conduct or speech is considered “riot-boosting” or “encouraging” a riot. The ACLU argues that such vague and broad language invites arbitrary enforcement, will chill protected speech, and will result in indiscriminate targeting of peaceful organizers.

By equating peaceful organization and support of protest with “riot boosting” and incitement to riot, the plaintiffs’ ability to speak out against the Keystone XL Pipeline is stifled. The Riot Boosting Act unconstitutionally targets protected speech, which cannot be properly characterized as incitement to violence or speech incident to criminal conduct, and threatens liability on speakers regardless of their intent or likelihood that violence will occur.

The case, Dakota Rural Action v. Noem, was filed in the Rapid City-based Western Division of the U.S. District Court for the District of South Dakota. Because the challenged laws expose the plaintiffs to immediate and irreparable harm, they are asking the court to immediately prohibit the state from enforcing these laws as the case goes forward.