South Dakota’s governor
and attorney general today backed down from their unconstitutional attempts to silence
pipeline protestors. In response to a
lawsuit we filed alongside the ACLU of South Dakota and the Robins
Kaplan law firm, the state has agreed to never enforce the unconstitutional
provisions of several state laws that threatened activists who encourage or
organize protests, particularly protests of the Keystone XL pipeline, with
fines and criminal penalties of up to 25 years in prison.
The settlement agreement reached today and now headed to the court for approval is an important victory for the right to protest. It comes soon after a federal court temporarily blocked enforcement of the pieces of the laws that infringed on First Amendment protected speech, and makes the court’s temporary block a permanent one.
The laws include the “Riot
Boosting” Act, which gave the state the authority to sue individuals and
organizations for “riot boosting,” a
novel and confusing term. The court warned against the laws’
broad reach, noting that the laws could have prohibited:
- Sending
a supporting email or a letter to the editor in support of a protest - Giving
a cup of coffee or thumbs up or $10 to protesters - Holding
up a sign in protest on a street corner - Asking
someone to protest
Under the First
Amendment, that is impermissible.
The court rightly recognized
the stakes of this case. And it put these anti-protest efforts in perspective,
asking “if these riot boosting statutes were applied to the protests that took
place in Birmingham, Alabama, what might be the result?” The answer: “Dr. King
and the Southern Christian Leadership Conference could have been liable under
an identical riot boosting law[.]”
Indeed, South Dakota’s unconstitutional
anti-protest efforts echoed the suppression of past social movements. From the
start, South Dakota Governor Kristi Noem called on “shut[ting] down”
“out-of-state people” who come into South Dakota to “slow and stop
construction” of the pipeline. Her harmful calls were reminiscent of government
attempts throughout our history to delegitimize and minimize significant social
movements as the work of “outside agitators,” including Reverend
Martin Luther King Jr.
South Dakota’s quick and
costly retreat (they’ll have to cover plaintiffs’ attorney’s fees under the
settlement agreement) should serve as a lesson for other
legislatures considering similar efforts to silence dissent.
In the last few years, we have witnessed a legislative trend of states seeking to criminalize protest, deter political participation, and curtail freedom of association. These bills appear to be a direct reaction from politicians and corporations to some of the most effective tactics of those speaking out today, including water protectors challenging pipeline construction, Black Lives Matter, and those calling for boycotts of Israel. These legislative moves are aimed at suppressing dissent and undercutting marginalized and over-policed groups voicing concerns that disrupt current power dynamics.
But the First Amendment guarantees people the right to voice their opposition. This includes our clients—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 of whom are protesting construction of the Keystone XL pipeline and encouraging others to do the same.
Construction of the
Keystone XL pipeline may be imminent. Pre-construction activities resumed
this month, and a hearing on the new
Draft Environmental Impact Statement for the pipeline, which
will serve as the basis for approval of any future permits, is coming up next
Monday.
With the laws we
challenged proclaimed unenforceable, protesters and protectors no longer have
to worry about incarceration or fines as they protest against the construction.
That is, at a minimum, how democracy should work.