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

The lawsuit was filed in federal court in the District of South Dakota 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 Keystone XL pipeline and/or encourage others to do so.

“No one should have to fear the government coming after them for exercising their First Amendment rights,” said Courtney Bowie, legal director of the ACLU of South Dakota. “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.”

The lawsuit asserts that the laws 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. Because the challenged laws expose the plaintiffs to immediate and irreparable harm, the plaintiffs are asking the court to immediately prohibit the state from enforcing these laws as the case goes forward.

The Riot Boosting Act, which became law this week, 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.

“This country has always become better when people have taken to the streets, fields, and halls of injustice,” said Nick Tilsen, president and CEO of NDN Collective. “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.”

According to the state’s website, the Riot Boosting Act is a result of discussions held with other state officials and TransCanada, the company that is set to build the oil pipeline in the coming months. Under the law, TransCanada could take the money seized from protesters and organizations found liable for “riot boosting.”

“These laws represent a blatant attempt to criminalize free speech and intimidate those who would exercise their First Amendment rights to speak out against dangerous pipeline projects in our state,” said Mark Winegar, chair of the Sierra Club South Dakota Chapter. “We are hopeful that the court will recognize this effort to undermine South Dakotans’ right to peaceful assembly and free speech for what it is and reject these dangerous laws.”

Construction of the Keystone XL pipeline is currently on hold. In mid-March, the Ninth Circuit Court of Appeals rejected TransCanada’s appeal to overturn a decision made last year to stop pre-construction of the pipeline.

The complaint can be found here: https://www.aclusd.org/en/cases/freespeech.